It's been more than two years since Cliven Bundy left the federal courthouse in downtown Las Vegas a free man.
His arm around his wife, Carol Bundy, the Nevada rancher was defiant.
"We're not done with this," Bundy told reporters in January 2018. "If the federal government comes after us again we will definitely tell 'em the truth."
On Friday, the Justice Department will try to come after the Bundys again, when federal prosecutors will appeal for a retrial over a 2014 armed standoff between Bundy, his militia and federal agents who had come to round up the rancher's cows that were illegally grazing on federal land.
The government's case against Cliven Bundy, his sons, Ammon and Ryan and a Montana militiaman named Ryan Payne, collapsed after a judge declared a mistrial in December 2017. Bundy and his men were accused of conspiracy against federal agents and other charges for their role in the tense standoff which later became a symbol over the fight against federal control of public lands.
"If there is no successful prosecution, it's going to encourage a lot of anarchists like the Bundys to take actions that not only are a threat to themselves but threats to the public at large," said Pat Shea, who served as BLM director during the Clinton administration.
Retrial effort criticized
For their part, the Bundys and their supporters appear puzzled that the federal government is even pursuing a retrial.
"What's really ironic and frankly I think disgusting is that the Trump Justice Department is the one that allowed the U.S. attorney in Nevada to take the appeal," said Larry Klayman, Cliven Bundy's attorney.
After all, President Trump recently pardoned two Oregon ranchers whose fight with federal land managers inspired Cliven Bundy's son, Ammon Bundy, to lead a separate, armed takeover of the Malheur National Wildlife Refuge in Oregon in 2016.
Federal prosecutors mostly failed to get convictions in that Oregon case and have been widely criticized for bungling the Nevada trial. Judge Gloria Navarro dismissed the case and later declared a mistrial after ruling federal prosecutors "deliberately misled" defense attorneys and the court by failing to provide evidence from surveillance cameras and to disclose the existence of federal snipers near the ranch in the days leading up to the April 2014 standoff.
The U.S. attorney's office in Nevada declined an interview request by NPR.
But court filings indicate prosecutors will likely argue Friday that their missteps in the 2017 trial were "inadvertent," and in particular they say they were trying to balance disclosing Bureau of Land Management surveillance footage with protecting witnesses against violence.
Klayman, who is himself a controversial conservative activist and was once fixture in the "Birther" movement, says the DOJ is being hypocritical. He says the investigation against former Trump national security adviser Michael Flynn was recently dropped, but not his clients.
"If you're one of the Washington elite and establishment in the nation's capital, you get special treatment," Klayman said. "If you're Cliven Bundy and his sons and the peaceful protesters, basically you don't."
Most of the federal agents and land managers who were at the 2014 standoff say it was anything but a peaceful protest.
Photos and social media posts showed militia training their rifles on armed BLM officers who had come to round up Bundy's cattle. Cliven Bundy has refused to recognize the federal government's ownership of millions of acres of public land — including in Nevada. The rancher has consequently not paid federal fees owed for grazing his cows on land near the Lake Mead National Recreation Area since the 1990s.
Pandemic "resuscitates" movement
Retired federal land managers like Pat Shea have expressed outrage over the government's continued failure to prosecute the Bundys, whose cows continue to graze — for free — on land that's now protected as a national monument.
The Bundys' original dispute over grazing goes back decades, stemming from tensions between ranchers and environmentalists and the city of Las Vegas, as it began rapidly expanding into a protected desert tortoise's habitat. Bundy was seen as the last rancher in southern Nevada who refused to get out of the business. But in the years since, his critics say the family's fight has devolved into far right extremism, and a widely debunked legal theory that counties and states, not the federal government, should own public land.
"It's like the COVID-19 virus, they mutate as to their belief system so much that you can never tell what they're going to advocate," Shea said. "They are a danger to themselves and a danger to everyone else they come in contact with."
Indeed, the pandemic has lately brought an opportunity to breathe new life to the Bundys and their self-described patriot movement that had been seen as starting to fade. Ammon Bundy and some of the family's followers have been traveling across the West leading protests against coronavirus public health restrictions, protests that thus far haven't drawn huge numbers.
At one recent march in Washington state that was streamed on Facebook, activist Kelli Stewart decried the business closures: "Come on guys, this is the American way, open rebellion to tyrannical laws, we're not slaves."
A rebellious fight against tyranny, or justice against a family that has flaunted the law for decades, that's a question now before the Ninth Circuit Court of Appeals in San Francisco. The court takes up the appeal for a retrial in USA vs. Bundy in a virtual session on Friday.