29 Mar Meanwhile, Out West

by William Perry Pendley

When Attorney General Janet Reno announced she would not seek appointment of an Independent Counsel to investigate President Clinton’s alleged campaign-financing abuses, she gave a simple answer. President Clinton lacked criminal intent; that is, he had no intent, at the time of the alleged criminal activity, to commit the elements of the crime.

If Clinton did not intend to commit a violation of federal campaign-financing laws, the Attorney General Reno is right to raise the legal issue of mens rea or criminal intent. But I wish she would alert her attorneys, both in Washington, D.C. and in Colorado, that meanwhile out West, a man is being prosecuted for a federal crime for which he lacked criminal intent.

Bobby Unser, on a beautifully clear December day, almost exactly two years ago, went for a snowmobile ride in a national forest in southern Colorado. When a dangerous blizzard swept down upon Mr. Unser and his friend, they were in deadly peril. Quickly they became disoriented and then lost as they struggled to find their way to safety. Eventually, they made it to civilization, but not before they had abandoned their snowmobiles in the deepening snow, had spent the night shivering in a hastily-carved snow cave, and had hiked out of the national forest, through waist-deep snow, for eighteen hours.

While Mr. Unser’s safety was assured, his legal peril was just beginning. The Clinton Administration charged him with operating a snowmobile in a federal wilderness area. Mr. Unser asserted that he had not been in the federal wilderness area, but if he were, he was there out of necessity or as a result of an emergency. That is, he had no intention of being within the federal wilderness area, and element of the crime. Federal prosecutors insisted that, given the gravity of the offense–despoiling a wilderness area–criminal intent should not be required. A federal district court agreed; Unser was convicted without proof of criminal intent.

On another front, Clinton defenders assert that Independent Counsel Starr’s investigation was unfair. What would they say about the fact that meanwhile, out West, Clinton’s officials are conducting an investigation that reads like Orwell’s 1984.

In mid-December, Secretary Babbitt’s agency mailed a frightening letter to those with hunting licenses for November near Luna, New Mexico, demanding a response “within seven days” to “preclude…Special Agents from meeting with you in person.” The instructions are chilling: “Every word is important. This is not a draft. Only write your answers once. [B]efore you write, please think as to how you are going to phrase your answers.” “Use only a pen while writing (no pencils). No typing allowed.”

It gets worse. “[A] Mexican Gray Wolf was found dead from a gunshot wound…during the time that you were hunting, November 1998. How would you explain this? Please write in DETAIL your ideas.” “List the 5 most important causes that could have created this situation.” “Would you like to change any of the information you have provided?” Then this, “Before you answer the following questions, we would like to inform you that each word of your answers will be evaluated. [T]ake your time and think before you answer. Do you know who shot the wolf? Did you shoot the wolf? Did you take part in shooting the wolf?” Write in detail about your hunting trip…beginning from the time you left home until you returned.” “How do you feel now that you have completed this form? Should we believe your answers to the questions? If the answer to the last question was yes; give us one reason why.” “What were your emotions while filing out this form? Did you feel afraid while completing this form?”

It is not merely that Clinton and his officials believe that he is above the law, but also they believe that, meanwhile, out West, the American people are beneath the law and beyond the protections of the Constitution.

William Perry Pendley is President and Chief Legal Officer of Mountain States Legal Foundation. Mountain States Legal Foundation is a nonprofit, public interest legal center dedicated to individual liberty, the right to own and use property, limited government and the free enterprise system.