- The Washington Times - Wednesday, February 6, 2019

The Justice Department filed an appeal Wednesday of its devastating defeat against Cliven Bundy in the Nevada standoff, disputing the federal judge’s decision last year to throw out the case based on prosecutorial wrongdoing.

The 88-page motion, filed with the Ninth Circuit Court of Appeals, challenged Chief U.S. District Court Judge Gloria Navarro’s blistering finding of “flagrant” misconduct, which prompted her to declare a mistrial in December 2017 and dismiss the charges a month later.

U.S. Attorney for Nevada Nicholas A. Trutanich, who took over last month, insisted that the government had “timely disclosed significant discovery,” refuting the judge’s ruling that prosecutors had withheld evidence on items such as an FBI surveillance camera and snipers at the 2014 clash.

“To the extent any of the government’s shortcomings constituted Brady violations, they were clearly inadvertent, and certainly not willful,” he said in the motion. “In its ruling dismissing the indictment with prejudice, however, the district court found government errors it had only weeks earlier deemed diligent and reasonable now to be ‘flagrant,’ ‘reckless,’ ‘intentional,’ ‘grossly shocking,’ and in violation of a ‘universal sense of justice.’”

The judge’s findings “fail as a matter of law; and the record and the facts do not support the district court’s condemnation of the prosecutors in this case,” the motion said.

Mr. Trutanich also argued that the decision to dismiss the case with prejudice — meaning that the prosecution cannot refile charges against the Bundys — was too severe.

“Any missteps were inadvertent (or at worst negligent), and those errors did not merit the court’s strong condemnation of the prosecution team,” he said.

Bundy attorney Larry Klayman immediately filed a motion to strike the appeal, calling it “frivolous” and arguing that the court had not granted the government’s request for a third extension of the deadline.

“To keep this appeal hanging over the head of my client and his co-defendants is more than unconscionable: it is unprofessional and grossly unethical, and calculated only inflict more severe emotional distress on them and to ‘circle the wagons’ around those ‘bad actors’ in this U.S. Attorney’s office who themselves, rather than the defendants, committed crimes,” Mr. Klayman said in his brief.

Judge Navarro’s ruling delivered a stunning black eye to federal prosecutors in the high-profile case against Cliven Bundy, sons Ammon and Ryan Bundy, and Ryan Payne, who walked out of the Las Vegas courtroom instead of spending decades in prison on federal conspiracy and weapons charges.

The charges stemmed from the armed standoff between supporters of the Bundy ranchers and the Bureau of Land Management after agents attempted to impound the family’s cattle over a 20-year-old dispute over grazing fees.

After the case was tossed, then-Attorney General Jeff Sessions said an investigation would be conducted into the misconduct identified by the judge, although any findings from the probe have yet to be disclosed publicly.

Mr. Klayman said he worried the Justice Department is in disarray following the departure last year of Mr. Sessions, who was replaced by acting Attorney General Matthew Whitaker. Senate Democrats sued last month to block his appointment because he has not received Senate confirmation.

“It shows that no one is in control of the Justice Department,” Mr. Klayman said. “This thing is being run by the prosecutors in Nevada who committed all of the prosecutorial misconduct. It remains to be seen if anyone in Washington even knows what they’re doing.”

He also said he would pursue sanctions against prosecutors in the Nevada office.

“The Justice Department is spinning wildly out of control and nobody’s in charge,” Mr. Klayman said. “And meanwhile, people like the Bundys are being persecuted.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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