Why the Bundys walk from prosecution a third time

In jury after jury but few of the hundreds engaged in what has been dubbed the Battle of Bunkerville have been prosecuted in a historic confrontation between the federal government and its citizens over western land. A confrontation which at its peak had government snipers aimed at the unarmed Bundy family, and friends of the Bundys, coming from points as far away as New Hampshire and Florida, had their rifles aimed at the government snipers. Had the government not backed down, it could have resulted in a nasty bloodbath with many more throughout the West ready to aid the family.

Three trials were held in 2017. The first in April ended in a mistrial; another in July had mostly acquittals and a third in November on ringleaders Cliven Bundy and his two sons Ammon and Ryan and a co-defendant Ryan Payne, ended in another mistrial. The most recent trial was complicated by the government’s withholding 3,000 pages of evidence, some showing the involvement of the FBI in the standoff at the ranch and others showing the disparity between government sources on the threat assessment – one showed the Bundys to be nonviolent.

To further complicate the issue, Ammon and Ryan Bundy had also been acquitted of federal conspiracy and weapons charges stemming from an armed, 40-day occupation of the Malheur National Wildlife Refuge in Oregon the year previously.

Why can’t the government get prosecutions? Bundy arguments brought focus to three concerns: federal land within a sovereign state, the Constitution and jury nullification.

Juries are made of citizens who have to wonder why the federal government owns 87.7 percent of Nevada, leaving private ownership of the state at but 12.3 percent. The percentage of land owned by government exceeds 50 percent in Alaska, 98.5 percent; Idaho, 63.8 percent; Oregon, 52.6 percent and Utah, 63.6 percent. Basically, the federal government did not give western states all their land when they qualified for statehood. States were so excited to get the coveted statehood that they went along with the conditions despite the confiscation of, for most in the West, at least a third of their land. States want their confiscated land returned, so as to be on equal footing with 19 sister states that actually own their land.

The Revolutionary War doubled the size of the country. The federal government under the Articles of Confederation and the Northwest Ordinance of 1787 was to manage nonstate lands until such lands met the qualifications of statehood, which were thereafter to be managed by the new state. This process was retained under the new Constitution in Article IV, Section 3 and was to be modeled throughout the West.

In Article I, Section 8 of the new Constitution, the federal government was permitted to have but 10 square miles for a federal capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution in Article I, Section 8, Clause 17 which reads: “and to exercise like authority overall places purchased by the consent of the Legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dock yards and other needful buildings.”

Any new acquisition, outside the capital, had to be purchased, had to acquire the consent of the state Legislature where the land exists and had to be for military purposes. None of these constitutional requirements were met with respect to any of the states cited above although some military bases do exist in most of them. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally, there exists no federal land or Bureau of Land Management or even federal public land.

Jury nullification is the long-standing practice of ignoring the instructions of the judge when those instructions appear to be one-sided or to be against common sense, sometimes referred to as “lived experience.” When jurists, on their own, even when excluded from “approved” testimony, come to realize that Nevada only owns 12.3 percent of itself, they realize this practice is neither reasonable nor common sense. Some people may have read the Constitution and know of its clarity on land distribution. Some few know that in the distribution of power between federal and state entities, federal judges almost always advocate the extension of federal power. They are the strongest advocates for it, and thus tend to shape the decision by what they allow the juries to consider.

When Judge Gloria M. Navarro, who presided over the two mistrials, refused to allow issues running up to the standoff or the constitutional arguments, especially defense and free speech issues, to have relevance in the case and was so dictatorial with respect to what jurors could use to base their decision seemingly favoring the prosecution, she turned jurists off, hence jury nullification. It did not help the federal case when none of the Bundys brandished an assault weapon or appeared threatening to federal officials or had any history of violence.

Both sides have until Dec. 29 to make their cases for or against a new trial. If reconsideration is favored, Navarro has set a new trial date for Feb. 26. She is advised to let the issue stand as is, lest she risk yet a fourth jury nullification.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.

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