Newspapers Fight Protective Order in Cliven Bundy Trial

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     LAS VEGAS (CN) — Nevada newspapers say a protective order would impede coverage of the federal trial of 19 people charged with crimes in the 2014 armed standoff at the Bundy ranch.
     “It is undisputed that this matter is of public interest,” attorney Margaret McCletchie said in a motion to intervene by the Las Vegas Review-Journal and Battle Born Media. “(T)he case has been a fixture in local and national media since its inception. In fact, because several defendants have been active critics of the federal government for several years, the media has [sic] been following the progress of this matter even before the United States attorney for the District of Nevada indicted the 19 defendants,” McLetchie wrote in the April 29 motion to intervene in United States of America vs. Cliven D. Bundy, et al.
     Bundy and his armed supporters two years stopped federal wildlife agents from rounding up cattle Bundy had grazed on federal land for years without paying grazing fees. The federal government stood down and went away for fear of violence. Cliven Bundy was arrested in February this year while trying to join his son, Ammon, who had occupied the Malheur National Wildlife Refuge in Oregon. Separate charges are pending in that case. Both Bundys claim the federal government has no right to federal land.
     In the case at issue in Nevada, Cliven Bundy, his sons Ryan and Ammon and 16 others each face up to 16 federal charges, including conspiring to commit an offense against the United States, conspiring to impede or injure a federal officer, assaulting a federal officer, obstructing justice, extortion, and firearms violations.
     If convicted, the government seeks criminal forfeiture of property totaling some $3 million, plus the cattle the Bundys stopped the Bureau of Land Management from rounding up two years ago.
     The Review-Journal is Nevada’s largest daily newspaper, with a Sunday circulation of 180,000. Battle Born Media publishes several community newspapers in Clark County and elsewhere in Nevada. The Bundy Ranch is in Bunkerville, in Clark County.
     McLetchie says the Review-Journal had reported on the Bundy family’s activities before the April 12, 2014, standoff that led to federal charges, and has covered the family extensively since then.
     Among Battle Born Media’s many weekly newspapers is the Mesquite Local News, whose circulation area is near the Bundys’ Bunkerville ranch.
     “For the very reason that this case is a matter of public interest, the proposed intervenors should be allowed to intervene for the purposes of voicing concerns regarding limits to access to information,” McCletchie says in the 17-page motion.
     She says the “proposed protective order unduly narrows the universe of individuals who will have access to discovery documents that are of vital public concern,” and that “only a defendant, defense counsel, defense counsel’s employees, and persons deemed necessary to aid defense counsel” would have access to the protected documents.
     Although the Federal Rules of Criminal Procedure and the Nevada District Court do not mention motions to intervene in criminal cases, McLetchie says, federal courts recognize that the “‘First Amendment implicitly guarantees the right to access criminal trials,’ and ‘motions to intervene are procedurally proper when the public or press seeks to intervene for the limited purpose of accessing a criminal proceeding or court documents.’ … ‘Domestic press outlets unquestionably have standing to challenge access to court documents.'”
     The U.S. Supreme Court has ruled that when a court considers excluding the press or public from hearings or access to records, the press and public must have the opportunity to be heard on the matter, McLetchie says.
     Federal prosecutors filed a complex case schedule on April 18, in which, McLetchie says, the prosecutors seek to “prevent the dissemination of discovery in this matter,” to protect witnesses and ensure their security.
     The press and public do not have an absolute right to see discovery materials, McCletchie acknowledges, but the First Amendment must be taken into account when determining whether good cause exists to issue a protective order.
     “The government’s proposed protective order totally thwarts the public’s right to information about this case by protecting virtually all documents produced by the government from disclosure,” McCletchie wrote.
     Prosecutors provided no facts or arguments on how witnesses would be adversely affected without a protective order, and want the order to apply to all “‘material and documents created or written by the government, or obtained by the government through warrants or a court order,'” McLetchie said.
     “This overbroad and unsupported protective order impedes the rights of intervenors and other news outlets to report on a case of local and national importance,” McLetchie added.
     Informing the public about “justice being carried out in the courts … is vital to the health of a democracy,” and an essential element of a free press, McCletchie said. “‘In short, justice must not only be done, it must be seen to be done.’ (United States v. Rosen, 487 F. Supp. 2d 703, 716 (E.D. Va. 2007).)”
     In the complex case schedule, prosecutors propose three phases for discovery. The first involves search warrants, applications, search-and-seizure affidavits, statements, documents and objects that federal prosecutors compiled.
     The second phase involves more documents and objects the government is required to produce, followed by police reports and indictments in the final phase.
     McCletchie says many of the documents and videos prosecutors want protected already have been published on Facebook and YouTube, and the government “cannot force them under the veil of a protective order.”
     “The cat has already been let out of the bag, and the government cannot try to force it back in,” McCletchie said.
     She says the proposed protective order does not include mechanisms to exclude from protection documents and materials that should not be protected. She does not object to redaction of information to protect witnesses, such as their names, Social Security numbers and residences.
     Also, the protective order should enable the defense to disclose the contents of documents prosecutors want protected, McCletchie says.
     The newspapers also want prosecutors to maintain a log of protected information and the reasons it is protected, provide a mechanism to challenge confidentiality claims, include a provision protecting parties against waiving challenges to “protected” information, and to show compelling reasons why any document should be protected.
     “The overbroad protective order proposed by the government cannot be entered and, if an alternative is entered after good cause is demonstrated, this court should enter a protective order that respects the public’s right to learn about this case and observe the workings of justice,” McCletchie concluded.
     McCletchie did not return a phone call seeking comment on Tuesday.
     The government’s proposed protective order, of April 29, is included as an exhibit to the motion to intervene.