Last week saw the indictment of FBI Special Agent W. Joseph Astarita for lying about shots he'd fired during the January 26, 2016 killing of Robert Lavoy Finicum. The Oregonian noted that the prosecution of FBI agents for their official conduct is almost unheard of. The unusual charges were "devastating" to the FBI, commented Danny Coulson, a former head of the bureau's Oregon office.
Well, maybe the indictment is so devastating because federal agents are rarely punished for brutal and dishonest behavior.
Interestingly, Coulson created and led the FBI's Hostage Rescue Team—the elite force to which Astarita belongs—during the bloody 1992 Ruby Ridge fiasco. He escaped prosecution for his conduct during that mess—for which the federal government paid out over $3 million in damages to survivors—though he spent two years on paid leave (read: vacation). Several other agents were disciplined, though the only official criminally punished for Ruby Ridge was E. Michael Kahoe, who destroyed an internal FBI report critical of the agents' conduct during the high-profile standoff. Anybody further up the food chain, Coulson included, was protected by a review process intended "to create scapegoats and false impressions," according to Eugene F. Glenn, the FBI commander at the scene, who publicly broke rank with his colleagues when he believed he was being set up to take a fall. So Coulson knows well that the rarity of prosecutions of federal agents can't be taken as an endorsement of their behavior—arguably, it could be interpreted as quite the opposite.
Prosecutions might be rarer still—which is to say, Astarita might be walking free and unconcerned today—if one Oregon sheriff hadn't become thoroughly bent out of shape over federal conduct during last year's Malheur National Wildlife Refuge standoff and then in its aftermath.
Deschutes County Sheriff Shane Nelson took on the investigation of the lethal confrontation resulting from what was, to all appearances, an ambush of armed Malheur protesters traveling to a public meeting to discuss their opposition to the treatment of local ranchers in particular, and to federal control of western lands in general. Specifically, Nelson tried to account for the eight shots fired in the incident—six by Oregon state troopers (including those that killed Finicum), none by the protesters, and two by… huh. Because the FBI agents on the scene all denied firing two shots at Finicum (and missing) as he exited his truck.
Nelson and his investigators quickly concluded that Astarita had fired the shots, and that he and his colleagues lied about it for reasons of their own.
"The actions of the FBI HRT in this case damage the integrity of the entire law enforcement profession, which makes me both disappointed and angry," Sheriff Nelson said after the indictment was announced.
Nelson became even angrier when he presented his findings to FBI officials and they did…nothing.
"I was disappointed when I recently heard FBI HRT agents, associated with this case, were not placed on administrative leave after the briefing by our investigators to FBI Administration. Today's indictment will ensure that the Defendant and, hopefully other culpable FBI HRT members, will be held accountable through the justice process."
Nelson isn't exactly an antigovernment radical. He signed off on the killing of Finicum, saying, "Of the eight shots fired, the six fired by the Oregon State Police were justified and, in fact, necessary."
But the sheriff isn't on board with federal agents taking random shots that may well have inflamed the situation. That's a theory quickly embraced by the Malheur protesters and their allies. Finicum's widow, Jeanette, "said Astarita's early shots may have contributed to the firing of the fatal gunshots moments later by two state police troopers who killed her husband," reports The Oregonian. Unsurprisingly, she plans to sue.
Sheriff Nelson voices serious discontent with the FBI's conduct during and after the shooting of Finicum, but knowledge of the bureau's handling of the Ruby Ridge incident might have prepared him for disappointment. So might some familiarity with the federal government's handling of other incidents, such as the 1993 disaster at the Branch Davidian compound in Waco, Texas, during which more than 80 people died.
FBI agents escaped official discipline for their conduct at Waco, but not criticism. Rather than shred an inconvenient internal report, the bureau and its allies produced an exculpatory public "review" that the New York Times promptly labeled a "whitewash." The newspaper's editorial board went on to note, "The report describes a litany of errors and blunders. Why, then, does it assign no blame?"
By contrast, the Bureau of Alcohol and Tobacco and Firearms fired two agents who led the initial raid and siege to which the FBI joined its efforts when matters went lethally wrong. Chuck Sarabyn and Phillip Chojinacki lost their jobs over accusations of "poor judgment and lying to investigators" (a pattern with federal law enforcement agents, it would seem). Then again, we're talking about a federal agency; one year later, Sarabyn and Chojinacki were rehired with full back pay and benefits.
Years later, the Times again called out the FBI, asking "why the F.B.I. failed for six years to tell anyone, including Congress and the Attorney General herself, that it had used incendiary tear-gas canisters near the end of the siege—an important point, given the lethal fire in which the standoff ended. Soon, Assistant U.S. Attorney Bill Johnston, the prosecutor who belatedly revealed the use of those canisters, faced charges of concealing evidence. Texas Monthly reported that he was being hung out to dry so the consequences would reach no further through the ranks of federal officials because he was "the only guy who doesn't have friends in Washington."
If you're asking yourself why Astarita and company would have concealed the shots he fired during an incident that resulted in state police killing Finicum anyway, perhaps the answer is that lying and concealing information seems to be the bureau's go-to response.
The FBI almost screwed up what should have been the slam-dunk prosecution of Timothy McVeigh for the bombing of the Alfred P. Murrah federal building in Oklahoma City (a crime largely motivated, it's worth remembering, by McVeigh's outrage over federal misconduct at Ruby Ridge and Waco). Despite minimal doubt about his guilt (McVeigh wanted to plead "necessity") the FBI couldn't help putting its thumb on the scale. The bureau's crime lab was caught reaching "scientifically unsound" conclusions that were "biased in favor of the prosecution" according to the Justice Department's Inspector General. Then McVeigh's execution was delayed when it was discovered that federal officials concealed hundreds of documents from his defense attorneys.
Frederic Whitehurst, the whistleblower who revealed the FBI crime lab's shenanigans in not just that high-profile case, but many others, was targeted by his superiors for retaliation for his troubles. He ultimately walked away with a $1.16 million settlement.
But back to the present.
Astarita "falsely stated he had not fired his weapon during the attempted arrest of Robert La Voy Finicum, when he knew then and there that he had fired his weapon," the federal indictment reads. Astonished by such bold-faced dishonesty from a federal agent, and by federal higher-ups' seeming lack of concern, Sheriff Nelson became "disappointed and angry" and pushed the issue—resulting in that court appearance and the trial to come.
Good for Sheriff Nelson. Finding out that people and agencies you respect are thugs and liars is a rough wake-up call for anybody. Persisting in the face of that unpleasant revelation deserves praise.
But if this indictment is to be other than just another footnote to the history of checkered conduct by the FBI and other agencies, more of us need such wake-up calls. Then, maybe, we'll curb the behavior that leads, on such rare occasion, to "devastating" consequences for federal officials.