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Although They’re Guilty, Acquiting Ammon Bundy’s Crew Was Right


The acquittal late last month of men charged with occupying the Malheur National Wildlife Refuge launched discussions of jury nullification and its place in the American legal system.

That’s an important discussion, but it does not explain everything at work in that trial. It took a unique combination of distrust, arrogance, and prosecutorial blunders to lead the Malheur occupiers to get away with the crimes of which they, by any objective standard, are clearly guilty.

Occupy from the Left, not the Right

The facts of the case looked like a slam-dunk for prosecutors. Twenty-seven men, led by Ammon Bundy and calling themselves the Citizens for Constitutional Freedom, took possession of the headquarters of the Malheur National Wildlife Refuge in eastern Oregon. Their actions were well-publicized and recorded, and clearly ran afoul of several federal laws.

They were charged with violating a variety of offenses—nearly everything is a crime if you do it on federal property—including conspiracy to intimidate federal workers, possession of firearms in federal facilities, and use of a firearm in a crime of violence.

These are serious crimes, but the government had plenty of evidence. Bundy and his crew made no effort to hide their activities, although they had several bizarre legal theories about why they had the right to do them. Moreover, federal prosecutors have a pretty good record of getting their men: the vast majority of federal trials end in a conviction. So, on October 27, when the jury in the main trial produced a not-guilty verdict, it provoked considerable outrage in some quarters, especially on the Left.

Their rage is both cynical and unsurprising. From a segment of society that typically sides with the defendant, vehement opposition to the occupiers is ridiculous. From people who supported Occupy Wall Street and honor radicals like Bill Ayers with tenure for their terrorism, the sudden lack of sympathy for rebellion is two-faced.

But lefties who condemn the Bundy crew do so not because of their crimes but because, unlike the communists of Zuccotti Park or the Weathermen of the 1960s, the Malheur occupiers’ motives are incomprehensible to them. If the occupiers were Sioux from the Standing Rock Reservation protesting an oil pipeline, their acquittal would be a cause for celebration on the Left. But this occupation is different. They don’t want to undermine an American war effort or fight Big Oil or seize someone else’s bank account—they want less government, and to the Left, that is the scariest rebellion of all.

The Legal Arguments at Play

Bundy and his crew had one major complaint against the U.S. government: that the feds own too much Western land. Whether you agree or not, that the government owns a great deal of land out West is indisputable (look at the government’s own map to see the extent of it).

In the East, we see federal land ownership mostly in the government’s own office buildings and military bases, along with a few national parks and forests preserved because of their natural beauty or historical significance. People in the rural West have a different story, with the majority of some western states’ land being federally owned. It amounts to one-third of the entire country. Because the land is far from urban population centers, most people never see it.

Right or wrong as policy, government land ownership is legal. The federal government has owned land since the birth of the republic, and that power is enshrined in the Constitution (Article I, section 8, clause 17). If the amount of land the feds hold is greater than anything the Founding Fathers imagined, the country itself is vaster than the one they knew. There are many ways in which the federal government stretches the Constitution, but this is not one of them.

Bundy called his group’s occupation an “adverse possession” action against the government. Adverse possession is a way of taking another person’s land that you think is yours by occupying it openly, excluding the legal owner and all other people, and keeping it for a long period of time, usually 21 years. That sounds like a legal theory that expired long ago, but it is actually good law in the United States.

One major caveat: it is not, and has never been, applicable against government property. Adverse possession sounds good in this situation to the kind of folks to whom the sovereign citizen movement sounds good, but it will not hold up in court. The Citizens for Constitutional Freedom—a name that in this election year sounds like a political action committee—have a beef, to be sure, but they do not have much of a case.

What Went Wrong in the Case?

Given the weakness of the occupiers’ legal arguments, the wealth of evidence against them, and the support in Washington for convicting them, how did the jury come back with a not guilty verdict? Many in the press were quick to blame jury nullification.

Jury nullification, as I wrote in April, is the theory that juries have the right to refuse to convict when they believe a conviction would be unjust. Even without the fancy name, the theory has been in practice as long as there have been juries, and it is one of the strengths of the jury system. Legislatures often overreach their constitutional limits, and executives often charge people under laws never meant to apply to them. When confronted with such a case, it is natural for a jury to hesitate before putting someone in jail for years for something they do not believe should even be a crime.

Is that what happened here? Did Bundy and his pals convince a jury of their peers that the government was wrong to stop them from violently occupying federal property? If that was their only strategy, it would have been unlikely to succeed.

But a series of other factors added to the jury’s mistrust of the government, foremost among them being prosecutors’ decisions. As Dan McLaughlin said, “Wherever you see jury nullification in an easy case, prosecutorial overcharging is rarely far behind.” This was certainly such as case.

Choosing to prosecute the group as a conspiracy made things complicated for the government. As Matt Pearce explained in the Los Angeles Times, “The conspiracy count was actually a double-whammy: If the defendants could persuade the jury that no criminal conspiracy had occurred, then they could not be convicted of the accompanying weapons charge — which requires the government to prove the guns had been brought on federal property to commit a crime.”

When that conspiracy charge fell apart, the weapons charge fell with it. But why did the conspiracy charge fail? Surely the men were acting in concert to commit a crime, weren’t they? As Juror 4 explained after the case ended, it was not that simple.

It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove ‘conspiracy’ in the count itself – and not any form of affirmation of the defense’s various beliefs, actions or aspirations…All 12 agreed that impeding existed, even if as an effect of the occupation…But we were not asked to judge on bullets and hurt feelings, rather to decide if any agreement was made with an illegal object in mind. It seemed this basic, high standard of proof was lost upon the prosecution throughout.

The same juror wrote, “The air of triumphalism that the prosecution brought was not lost on any of us, nor was it warranted given their burden of proof.” The government, confident of their case, failed to prove some of the elements of the main charge beyond a reasonable doubt. That’s not jury nullification, that’s the system at work.

We make it difficult to put our fellow Americans behind bars because, like the first proponents of the jury system in medieval England, we fear the power of the criminal justice system will be used unjustly. Despite the many changes to the criminal justice system since then, the right to trial by jury is one that, as William Blackstone wrote in his 1765 “Commentaries on the Laws of England,” “was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it.”

In the case against the Malheur occupiers, we see this faith in the jury system affirmed. We should draw strength from this even if we believe that the occupiers were wrong and deserve to be punished. The jury in Oregon lived up to their duty, putting aside their own feelings and opinions about the correctness of the defendants’ activities and limiting their judgment to the law, whether the defendants broke it, and whether the prosecutors proved it. The jury did its job, even if the prosecutors didn’t.