By Maxine Bernstein The Oregonian/OregonLive September 11, 2017
A federal judge has found California resident Gary Hunt, who published the names of confidential informants who helped the FBI during the armed takeover of the Malheur National Wildlife Refuge, in contempt of a court’s protective order.
U.S. District Judge Anna J. Brown has given Hunt until noon on Wednesday to remove the articles on his blog that reference the informants and destroy all government documents he received on the informants.
If he doesn’t, he’ll face more “coercive sanctions,” the judge wrote in her 23-page ruling.
Hunt, on his online blog, alerted readers of the judge’s order. But he also urged others to download the material before he removes the information from his blog.
In an online post Monday morning on his blog titled, “Notice – Get Them While You Can,” Hunt wrote, “At this time, it is prudent that Hunt complies with said requirement, as he stated he would during the August hearing, so he will comply. However, he will comply at the last minute.”
He wrote that his articles will be available until noon Wednesday. He wrote that the protective order and order to remove the material is limited to him, “therefore there is no legal consequence for downloading and preserving for posterity, these articles.”
Assistant U.S. Attorney Pam Holsinger had argued in court that it was Hunt’s intent to aid the defendants in the case by outing the FBI informants online so they could be called as witnesses during trial.
During a November 2016 recorded phone call with Schuyler Barbeau, who was in custody in Washington on an unrelated firearms offense, Hunt told Barbeau, “Right now I’m focused on exposing these informants because that’s going to help the February trial.” Hunt, prosecutors said, was referring to the second trial of Oregon refuge occupiers.
Barbeau had served as a security guard in support of the Bundy ranch during its standoff with federal land management agents in Nevada in 2014.
The judge cited Hunt’s statement to Barbeau, as well as other evidence, in concluding that Hunt helped a defendant in the Oregon standoff case or a member of their legal team by identifying and quoting in his online blog “Outpost of Freedom” from excerpts of confidential FBI reports on the informants in the armed refuge takeover case.
Hunt, 71, of Los Molinas, Calif., received an envelope in his mail in late summer or fall 2016 that contained a thumb drive with a note warning him not to share “this information,” and to “get rid” of the drive, according to court records. When he opened the thumb drive, Hunt found numerous FBI reports on their “confidential human sources.” The documents had stamps on them that read, “Dissemination Limited by Court Order.”
Brown said the stamps on the documents made it clear to Hunt immediately that there was a court order that prohibited his receipt of, and sharing of the information.
Since there’s no indication that anyone on the prosecution team in the two Oregon standoff trials provided the documents to Hunt, it must have come from a defendant or a member of their legal defense team, either directly or indirectly through a third party, the judge concluded.
Hunt, Brown pointed out, was on the Operation Mutual Defense advisory board prior to the refuge occupation, along with Ryan Payne and Jon Ritzheimer, two of the leaders of the refuge occupation who were among the 26 people indicted in the case. Payne and Ritzheimer have pleaded guilty to federal conspiracy in connection with the 41-day occupation of the federal wildlife sanctuary in eastern Oregon.
As part of discovery in the case, prosecutors provided defense lawyers with redacted documents on the FBI’s confidential informants who assisted with their investigation of the refuge takeover, and inadvertently, some documents that were not redacted. The court issued an order prohibiting the sharing of the documents to anyone who was not a defendant in the case, their attorney or a member of their legal team.
The presence of nine informants on the eastern Oregon refuge during the occupation in the winter of 2016, as well as six other informants who worked on the case for the FBI , was publicly revealed during testimony in the first trial of occupation leaders.
The protective orders were issued to protect the identities of the informants and protect them “from the risks of threats and intimidation,” Brown said.
Hunt testified in court that he didn’t know who sent him the material. While the judge expressed skepticism about Hunt’s testimony, Brown said it wasn’t necessary to know who sent it but concluded Hunt knew it originated from a defendant or member of their defense team.
After the leaders of the occupation, including Ammon Bundy, his brother Ryan Bundy, Shawna Cox and four others were acquitted at trial last fall, Hunt quoted extensively from the FBI documents on his blog in an effort to “out” the informants and partly to assist the second round of defendants headed for trial in February so they could call some of the informants as witnesses, the judge concluded.
Hunt countered in testimony last month that what he told Barbeau was simply to lift his spirits while he was in jail and didn’t reflect his true motive. Barbeau was sentenced in federal court in Seattle Friday to two years and three months in federal prison for possessing an unregistered firearm and possession of a machine gun.
On Jan. 5, 2017, the U.S. attorney’s office in Oregon gave Hunt an order to “cease and desist” publication of the FBI informants in the refuge case, with a directive to remove the material already posted online.
Hunt initially argued that the court didn’t have discretion to order him to remove the material as he was never a party to the federal conspiracy case. He also argued that the protective order violated his First Amendment rights, and he hasn’t removed the postings online.
When Hunt worked to identify and publicize the identities of the FBI informants, his actions “exceeded any First Amendment privilege protecting a journalist or commentator and crossed over into being a voluntary and active participant in the defense,” Brown wrote.
The judge cited case law from the U.S. Supreme Court, which she said has made it clear that “an order prohibiting dissemination of discovered information before trial” does not require “exacting First Amendment scrutiny.”
The judge found Hunt knowingly “aided and abetted” a defendant in the refuge conspiracy case and thus is in civil contempt of the protective order barring the sharing of the sensitive FBI documents provided to defendants as part of discovery.
Hunt spent one week in custody earlier this year after he initially disregarded the prosecutors’ order to remove the material from his online blog.
Hunt was arrested in late March on a warrant that Brown signed after he skipped a hearing to explain why he shouldn’t be held in civil contempt of her court order that he remove his online articles identifying informants by name. He spent a week in the Sacramento jail.
In testimony last month, Hunt told the judge if she found him in contempt, he’d comply with her orders.
As a result, Brown is giving Hunt one more chance.
Hunt should be given “an additional but final opportunity to comply with this Court’s Protective Order before the court employs other coercive sanctions,” Brown ruled.
Even if Hunt intends to appeal the judge’s ruling, he must remove the material from his website and destroy any documents he has, or provide them to his lawyer.