On an icy highway in rural Oregon on Tuesday afternoon, occupier and protest leader Ammon Bundy finally found the government confrontation that some fear he craved. But rather than a perilous frontal assault on the occupied federal building at the Malheur National Wildlife Refuge, FBI agents and the Oregon State Police opted for a cautious strategy. They stopped two cars of protesters on a remote road heading to a community meeting, arresting five and fatally shooting one. The details of that shooting aren't yet clear. Federal agents arrested two other protesters in the nearly town of Burns, and another surrendered in Arizona.
After debacles like Waco and Ruby Ridge, it seems the federal government has finally learned how to handle a standoff. If the rebels extend an invitation to a headline-grabbing siege, politely decline. If they frame the dispute as a fight between liberty and tyranny, brush your shoulders off.
Just as the arrest was cautious, so is the charge. In the federal criminal complaint — which the FBI didn't obtain until after the arrests — the U.S. attorney for the District of Oregon charges the eight defendants with a single count of conspiracy to impede an officer of the United States. That federal criminal statute doesn't see much use, and it's not one of the Justice Department's big guns: Its maximum penalty is only six years. To prosecutors, the virtue of such conspiracy charges are their flexibility: The government need prove only that two or more of the defendants agreed to prevent some federal employee from discharging his or her duty by force, intimidation or threat. Prosecutors don't have to prove they were successful.
It used to be hard to prove what defendants agreed to do: You had to infer it from their actions, or find a snitch to repeat their conversations, or wiretap them. But this is 2016, and we arrange our affairs in the open. The government's 31-page affidavit in support of the complaint against the eight occupiers is chock-full of their own words: statements in press interviews, statements in videos posted to YouTube, statements in widely distributed emails. It's enough to make a defense attorney weep.
The government's theory — thoughtfully supported by the defendants' public relations strategy — is that occupiers agreed to an armed takeover of federal buildings, thus preventing U.S. Fish and Wildlife Service employees from carrying out their duties. There are a few references to unspecified threats against federal employees and some rumblings about how the occupiers would defend themselves against a raid, but the core of the complaint is modest and straightforward: These people got together with guns and took over federal buildings and now the employees can't do their jobs.
The defendants have a right to indictment by grand jury within a few weeks, and that indictment may include more charges and more creative theories. For now, though, it seems the government is taking a low-key approach.
Of course, even if the criminal complaint doesn't support a narrative of martyrdom, the occupiers may use the federal court proceedings as a stage. Expect to see the rhetoric of tax protesters and “sovereign citizens” seeking to elevate mundane prosecutions into constitutional conventions. If the judges and prosecutors are wise, they won't get drawn into that dialogue. A matter-of-fact and methodical application of constitutional rights and procedural safeguards is the best way to counter claims of tyranny.
Twenty years ago I prosecuted a tax protester who claimed — as one does — that the gold fringe on the courtroom flag made it an admiralty court. “I'll pretend you're a boat,” the judge said dryly and proceeded with the mundane business of the case. Professionalism and protection of rights, not trading drama for drama, is the way to handle a self-styled revolutionary. It won't entertain the media, but it will refute the assertion that the system can't get it right.
Ken White is a partner at Brown White & Osborn LLP in Los Angeles. He is a former federal prosecutor and criminal defense attorney.