In opening statements Wednesday, Assistant U.S. Attorney Gary Sussman made clear that the case will not focus on whether Finicum’s shooting was justified but on whether Special Agent W. Joseph Astarita fired two shots and then lied about doing so. Sussman told the jury that both shots were covered up by officers on the scene — and that aerial footage captured from two FBI planes will show officers picking up items in the snow near where the victim lay.
“Those shell casings were gone,” he said.
But defense attorney Robert Cary — perhaps best known for representing former U.S. senator Ted Stevens (R-Alaska) on corruption charges a decade ago — told jurors that those two shots could have come from Oregon state troopers as well as Astarita’s supervisor. “What does the government have?” Cary asked, noting that there were no other eyewitnesses or ballistic evidence.
Astarita’s trial follows withering criticism of the FBI not just from the self-described patriot movement but, more recently, from the country’s highest political office. For months President Trump has labeled a former director a liar and accused the agency of carrying out a witch hunt in its investigation of Russian interference in the 2016 presidential election. Last week, he publicly questioned the agency’s integrity after he held a meeting with Russian President Vladimir Putin.
At the same time, Trump has buoyed groups that chafe over the federal government’s control of Western lands. The president recently pardoned Dwight Hammond Jr., and his son, Steven, cattle ranchers who were in prison for setting fires on public land they used for grazing. The armed seizure of the Malheur National Wildlife Refuge in southeastern Oregon was in part sparked by the criminal conviction of the Hammonds.
“No matter who wins this case, the government loses,” said J.J. MacNab, a fellow in George Washington University’s Program on Extremism who studies anti-government groups. “If the prosecution fails to convict . . . then this case is another example of a Justice Department overreaching. If Astarita is convicted, then the movement will see this as evidence that LaVoy Finicum was murdered by law enforcement.”
The agent, a member of the FBI’s elite Hostage Rescue Team, allegedly lied about shooting at Finicum during a fatal traffic stop on Jan. 26, 2016. The 54-year-old Arizonan had been one of the leaders of the Malheur takeover, which quickly became a magnet for anti-government militias and members of the patriot movement from around the country. His death then became a flash point.
Oregon State Police and FBI agents tried to stop two vehicles carrying Finicum and occupation leaders Ammon and Ryan Bundy, the sons of controversial Nevada rancher Cliven Bundy. While others complied with arrest, Finicum fled in his truck. A minute later, he crashed into a snowbank at a roadblock, leaped from his truck and reached for a loaded handgun inside his jacket as he shouted, “Go ahead and shoot me!” The officers’ lethal response was later determined to be justified by the Deschutes County Sheriff’s Office and local district attorneys.
Astarita, 41, faces two counts of making a false statement and one count of obstruction of justice over the shots that the prosecution says he failed to disclose having fired at the vehicle. His gunfire was revealed by video taken by a passenger in Finicum’s truck as it was hit with bullets.
Cary argued in court Wednesday that the forensic tests conducted to determine where the shots came from were flawed. The techniques used “are completely unreliable,” he said, noting that live ammunition was retrieved at the scene, where investigators expected other armed militia membersto turn up.
“You can’t leave live ammunition around if you think bad guys are coming,” Cary said as Finicum’s widow and a crowd of patriot supporters looked on from a gallery.
During the weeks-long occupation at Malheur, Finicum was often seen as a voice of calm. He talked to the news media repeatedly, explaining his theories about the Constitution and suggesting that he was willing to die for the protesters’ cause. To the protesters and their supporters, already mistrustful of the government and incensed by what they perceived as federal overreach, Finicum’s death reinforced long-held beliefs that the government is willing to kill people with ideas it opposes.
The FBI Hostage Rescue Team’s presence at two key events in the early 1990s has long bolstered the anti-government movement. In 1992, after a tense FBI standoff with Aryan Nations sympathizer Randy Weaver at a remote Idaho cabin on Ruby Ridge, a sniper on the hostage team killed Vicki Weaver as she held the couple’s infant child. And in 1993, the team was involved in the siege of the Branch Davidian compound in Waco, Tex. — which ended in the deaths of 82 civilians.
“The anti-government extremist movement sees them as jackbooted thugs,” said Sam Jackson, an assistant professor at the University at Albany’s College of Emergency Preparedness, Homeland Security and Cybersecurity. To the movement, these agents “epitomize the ability of the government to use violence against Americans,” Jackson said.
During the 2016 trial of seven protesters from the Malheur takeover, supporters in the courtroom often wore shirts with the distinctive “LV” cattle brand of Finicum. The rancher’s presence also loomed over a separate trial in Nevada involving the Bundy brothers and their father, Cliven. The family faced charges related to a 2014 clash with federal agents over two decades of unpaid grazing fees. When the case ended in a mistrial, banners, flags and signs bearing Finicum’s brand were carried outside the Las Vegas courthouse.
“I think it’s pretty clear he’s seen as a martyr,” said Jackson, who studies anti-government extremism.
Ryan Bundy, now an independent gubernatorial candidate in Nevada, was in the back seat of Finicum’s truck when it crashed and claims that one of Astarita’s bullets is still lodged in his shoulder. X-rays have shown a half-inch piece of metal there — something Bundy has insisted on keeping inside his body in case it is needed as evidence.
Leah Sottile is the host of the podcast “Bundyville” and a frequent contributor to The Washington Post.