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Ammon Bundy has amassed an army of over 50,000 as he looks for his next battle in a religious war

Ammon Bundy, right-wing malcontent behind the 2016 armed takeover of Oregon's Malheur Wildlife Refuge and now a western anti-mask movement, believes he's doing God's work.

Coming from a long line of religiously inspired men who have been "called" to defend the US Constitution, Bundy has varied in his focus, from rebelling against public land ranching regulations to protesting COVID-19 safety protocols. But in his view, these are all forms of government tyranny and affronts to constitutional rights. Arrested for the fourth time on March 15, 2021, Bundy was taken into custody for failing to appear at his hearing on past trespassing charges. Because he refused to wear a mask into the courtroom, thereby missing his trial, he was apprehended outside amid of a throng of other protesters.

Bundy's crusade has been a long time in the making, but in the last year he successfully established a coalition of supporters that is broad, diverse, and a serious threat to federal law. His group is called the People's Rights Network. Like the Oath Keepers and Proud Boys, it includes members who see the current government as a threat to perceived rights and are committed to defend their ideas of personal liberty, by force if necessary.

So what has taken Ammon Bundy, who first came to prominence during the 2014 armed standoff in Nevada over his father's unpaid grazing fees and trespassing cattle, into a life of an anti-government militant? The answer is a libertarian worldview and his take on Mormonism. Bundy's ideology parallels the thinking of certain leaders in the Church of Jesus Christ of Latter-day Saints, who've had a history of government cynicism. He also shares with them a tradition of theo-constitutionalism--venerating the Constitution as a sacred document. The paradox here is that Bundy believes he is upholding the Constitution and fulfilling his religious duties in his acts of lawlessness.

His impetus has roots in the early Church. After the founder and first prophet of Mormonism, Joseph Smith (1805-1844) was murdered, Brigham Young (1801-1877) assumed the reins of the Church and brought the Latter-day Saints into the Great Basin. By that point, Young and his brethren were disgusted with the US government after the years of mistreatment and bigotry they had faced. But the Mormon people kept great faith in the Constitution. While still an apostle of Smith, Young said "I find no fault with the Constitution or laws of our country; they are good enough. It is the abuse of those laws which I despise, and which God, good men and angels abhor." He later avowed " Corrupt men cannot walk these streets with impunity, and if that is alienism to the Government, amen to it. The Constitution of the United States we sustain all the day long, and it will sustain and shield us, while the men who say we are aliens, and cry out 'Mormon disturbance,' will go to hell….But to proceed; the principal evil is in the rulers, or those who profess to be rulers, and in the dispensers of the law…"

Young was not just the leader of the Church; like Smith, he was a prophet. Although he was not as prolific in his revelations as other Mormon prophet/presidents, these statements are memorialized in the Journal of Discourses and the History of the Church, texts not part of official Church doctrine, but significant, especially to those with radical leanings. Over the years, many Church prophets echoed Young's sentiments, from Wilford Woodruff (1807-1898) to Ezra Taft Benson (1899-1994), reinforcing the idea that the Constitution is good, but not those who govern under it. Benson took that idea further, declaring that the Mormon people had a religious obligation to protect the Constitution, even if this meant violence. In 1979 he declared, "I say to you with all the fervor of my soul that God intended men to be free. Rebellion against tyranny is a righteous cause. It is an enormous evil for any man to be enslaved to any system contrary to his own will. For that reason men, 200 years ago, pledged their lives, fortunes, and sacred honor. No nation which has kept the commandments of God has ever perished, but I say to you that once freedom is lost, only blood – human blood – will win it back."

So this is where things get treacherous. If the Constitution is sacred, but those overseeing it are evil, then who determines and upholds the law of the land? Bundy has come to think that this is his duty—a chilling certainty that is likely to escalate during this current administration. As vaccines are more widely administered and mask mandates therefore become less of a concern, Bundy's focus will return to his original cause. The new Secretary of the Interior, Deb Haaland, is now charged with overseeing public lands, including the place where Ammon's Bundy's father, Cliven, continues to illegally graze his cows. The patriarch Bundy and his most infamous son share the conviction that the federal government has no constitutional right or power to own land; hence the land belongs to those white people who have occupied and used it, and the requirement of grazing fees paid to the Bureau of Land Management is unconstitutional. Although Cliven has repeatedly lost his appeals in federal court, and currently owes over a million dollars in fines and fees, the old rancher's cows still roam the same BLM land, years after the Nevada armed standoff. To Ammon, mask mandates and grazing regulations are the same thing—affronts to constitutional rights. Law and common good be damned—he sees both as tyranny. He is determined to protect the Constitution, even by unconstitutional means. Where the next action is again taken—Nevada, Oregon, or somewhere else on the 600,000,000 acres of American public lands—remains to be seen.

In 2018, Bundy talked before an audience in South Jordan, UT during an event advertised as a "power packed four hours, with an LDS [Latter-day Saints] perspective, but practical info for all true friends of liberty." He told them about his father's dream, in which people approached a large building. Inside the building sat a golden calf, a biblical reference to a false idol, that Cliven understood to symbolize the American court of law. Ammon explained that the dream meant people are putting their faith in judges who do not have their best interests at hearts. "You can't worship the golden calf, you have to have faith in God," he told the audience. "When you know for certain that those are your own rights, you do not allow them to be questioned. And I know that's a strong thing I'm saying. But when you do that, then your friends need to come and protect you also. And it's a duty of ours to do that." Four months later, PeoplesRights.org was registered, a year and two months before pandemic brought America to a screeching halt. COVID-19 gave him a cause that fit a long ongoing narrative. The pandemic swelled the ranks of People's Rights because of conspiracy theory and righteous anger, but it wasn't invented in response to it.

Ammon Bundy has been looking for a next battle since the takeover of Malheur, when he led a group of heavily armed militia to occupy government buildings in Harney County, Oregon. During that takeover, one man, LaVoy Finicum, was shot and killed by police. Ammon now has his own militia, the People's Rights Network, an army of over 50,000 members in 50 states, according to the organization's website. He recently finished a recruitment tour in Utah, talking God, liberty, and the need for vigilante action—antidotes to golden calves. His campaign is part of a long drawn arc and we shouldn't expect his rebellion to end with a die-down of COVID-19. Bundy's attention will return to public land battles, where the first insurgencies began. It wasn't COVID-19 that spurred the formation of the People's Rights Network and inspired Bundy's mission, it was a deeply rooted sense of righteousness, Cliven's dream, and a version of Mormon ideology.

Betsy Gaines Quammen, PhD is the author of American Zion: Cliven Bundy, God and Public Lands in the West.

Expert explains how ridiculing QAnon cult members could be dangerous

The recent Senate acquittal of former president Donald Trump renewed attention on QAnon followers, with reports that some followers are taking the trial result as evidence of the correctness of their beliefs, galvanizing their faith in "the plan." Prior to the acquittal vote, other QAnon followers had soured on the group, particularly after the failed prophecy on January 6 that Trump would remain president.

Families are also experiencing hard feelings and tensions associated with QAnon, as people struggle to relate with family members who are strong believers.

Whether a follower decides to leave or stay, outsiders and loved ones would do well to resist ridiculing. Deprogramming cultish beliefs is difficult under the best of circumstances. Shaming and making fun of adherents may make you feel good, but it won't help you achieve the more important goal of getting back your loved ones. Social science helps us understand why.

I wrote earlier about the ways devotees to a cause can respond in the wake of a failed prediction. While there are acute differences between the Seekers cult and QAnon followers, particularly when it comes to their post-disconfirmation behavior thus far, we'd be naive to not learn from the allegiances of past failed prophecies.

The Seekers example dates back to 1954 when a Doomsday group believed the world would end in a catastrophic flood with only the believers in the group being spared. Social psychologist Leon Festinger chronicled the group's actions in the months leading up to and after the prophesied day of destruction.

What was remarkable about the Seekers (and which confirmed Festinger's famous theory of cognitive dissonance) was that when faced with knowledge of the failed prediction—there was no flood—believers not only doubled down on their belief, but immediately began to proselytize. They became desperate to win new converts.

This may resemble what we're seeing with QAnon followers post-acquittal, but by comparison, it's hard to say what they're currently thinking. Perhaps some are laying low and biding their time. Perhaps others have abandoned the group (as did some of the Seekers). Some may be experiencing a restored sense of hope given the most recent failed impeachment of Trump, but we haven't yet seen evidence of increased proselytizing by QAnon adherents.

Both groups experienced a failed prediction on a massive scale, a prediction in which both groups' followers believed strongly and to which they demonstrated fierce commitment. Seekers did so by giving up their jobs and handing over their possessions and savings, while QAnon followers risked exposure and prosecution on January 6 by rioting in the nation's capital. But what determines whether QAnon followers will increase their proselytizing?

Inspired by Festinger's test of his theory of cognitive dissonance, scientists Jane Hardyck and Marcia Braden published a report of a doomsday group they observed in 1962 called the Church of the True Word. The group also faced a disconfirmed prophecy that the world would soon end in nuclear war. In commitment to their belief, the group had built underground fallout shelters and stocked them with canned and dehydrated food, large jugs of water, and power generators. On word that the group's prophet had received a divine message, having already been inspired by certain passages of the book of Revelation, 135 followers headed into their shelters.

Of those who went in, 103 remained for a full 42 days and nights. The faithful received word to come out. Those who'd stayed inside claimed that their stay had strengthened their faith and increased their belief in the work of the group. While the Seekers reframed their own failed prediction as God having spared the world, the True Word group reacted in the same vein by claiming God was testing their faith. In other words, some members of both groups clung to their beliefs.

However, whereas the Seekers desperately began to search for new converts, the True Word group did not. What made the difference? The observations of scientists Hardyck and Braden suggested one possibility: news coverage of the Seekers was largely disdainful and ridiculing. By contrast, the True Word followers received very little ridicule from news outlets or local townspeople. In fact, the town mayor was quoted as explicitly calling for no one to ridicule the group for their beliefs.

It was ridicule that backed the Seekers into a corner from which relief could come only by attempting to find other people who believed the same. Because the True Word followers weren't ridiculed, they were not pushed to the point where they felt no recourse but to proselytize. Herein lies the lesson for us.

Your loved one's next move may depend on the amount of ridicule they experience. It may be tempting to scoff at the group, but in the end it may be counterproductive. If we really want to shrink QAnon, or at least curb its outreach efforts and heal our families, we have to recall the differences in treatment given to followers of the failed prophecies of the past. That's not to say people who broke the law or engaged in other antisocial behavior shouldn't be held accountable, but history does have a way of repeating itself.

McConnell's decision to condemn Trump after voting for his acquittal wasn't just an act of cowardice: Historian

On February 12, when 43 Republican Senators voted to acquit former President Trump of the charge of incitement to insurrection, they reaffirmed the Faustian bargain they had made with him in 2016. Republican Senator Mitch McConnell was the central figure in the GOP's bargain: in exchange for tax cuts and conservative judicial nominations, he and the Republican senators enabled, supported, tolerated, and lent mainstream conservative legitimacy to Trump. For a month after the 2020 election which Trump had obviously lost, McConnell remained silent while Trump repeated the "stab in the back" lie about the "stolen election." So, it was not surprising that on February 12, 2021, faced with overwhelming evidence of Trump's guilt, that McConnell voted with 42 other Republican Senators to acquit him. He was at the center of that nullification. We do not know if McConnell could have found an additional ten votes to convict Trump, but there have been no reports that he tried to do so or that he was willing to join a minority short of the needed 67 votes on the basis of the law, the constitution, the facts and the evidence.

For Senators Josh Hawley, Ted Cruz, Ron Johnson and Lindsay Graham, and no doubt others, the vote was also an expression of ideological agreement with Trump and Trumpism. For them the bargain with Trump had moved beyond McConnell's marriage of convenience to an alliance of shared ideological conviction or of a cynicism so deep that they repeated his lies in public. Their problem was that the House Managers were led by former law professor Jamie Raskin, with a remarkable team composed of Diana DeGette, David Cicilline, Joachim Castro, Eric Swalwell, Ted Lieu, Stacey Plaskett, Joe Neguse and Madeline Dean. That team offered a blend of argument and evidence, from their pretrial brief to Raskin's opening statement, and those of others that set a formidable standard of clarity and causal reasoning that historians would applaud in their own work. The vote to acquit by the 43 Republican Senators was a clear case of jury nullification, that is, of rendering a verdict that ignored the weight of fact, evidence, and argument.

If the Republicans did not want to admit that a team of Democrats made the case based on the Constitution, the law and the facts, they could have sought shelter in the warm embrace of Charles Cooper, the lawyer with close ties to the Republican legal establishment, who several days before the trial argued in the pages of the Wall Street Journal that impeaching a former President was indeed within the constitutional powers of the Senate. Or, they could point to the 144 constitutional experts, include leading conservatives, who issued a public statement that the First Amendment protection of free speech did not defend the right of the President of the United States to incite a mob to attack the Capitol. Or, being the lawyers many of them are, they could admit that Raskin, and the team of House Managers shredded Trump's lawyers efforts to use those arguments. Conservative legal scholars and practitioners, as well as the House Managers gave McConnell the arguments, he needed to attempt to rally his Republicans majority to convict Trump. He could have done so with paeans to constitutional originalism, and of the prerogatives of the Senate.

In the course of the trial, Plaskett and Dean documented Trumps' months long campaign repeating the lie of the stolen election and the need to come to Washington on January 6th. Trumps' lawyers offered no rebuttal to Raskin's rejection of the "January exception" to Presidential misconduct in the last weeks in power, nor did they refute the factual record about Trump's campaign of lies and its consequences. They did not refute the House Managers' accounts of Trump's tactical use and approval of political violence. The Senators themselves knew that Trump refused to order his mob to stop when the entire Congress, its staff, and others working in the Capitol were in imminent physical danger. They also knew that when House Manager and Congressman Joaquin Castro said Trump had "left everyone in this Capitol for dead," he, Castro, was telling them a truth they knew as well as anyone.

Yet after all that, McConnell voted to acquit Trump, hoping that he could assuage the enraged Trump base. Yet McConnell, firmly planted in the reality of this world rather than that of Trump's "alternate facts," then unleashed the anger he had kept under wraps for the past four years. As McConnell's denunciation of Trump may be lost in the mass of words about the trial, it bears quoting at length. Bear in mind, that these are the words spoken by McConnell, not Raskin.

Let me put that to the side for one moment and reiterate something I said weeks ago: There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their President. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.

The issue is not only the President's intemperate language on January 6th. It is not just his endorsement of remarks in which an associate urged 'trial by combat.' It was also the entire manufactured atmosphere of looming catastrophe; the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-President.

I defended the President's right to bring any complaints to our legal system. The legal system spoke. The Electoral College spoke. As I stood up and said clearly at the time, the election was settled. But that reality just opened a new chapter of even wilder and more unfounded claims. The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things. Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally.

This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters' decision or else torch our institutions on the way out.

The unconscionable behavior did not end when the violence began. Whatever our ex-President claims he thought might happen that day… whatever reaction he says he meant to produce… by that afternoon, he was watching the same live television as the rest of the world. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.

It was obvious that only President Trump could end this. Former aides publicly begged him to do so. Loyal allies frantically called the Administration. But the President did not act swiftly. He did not do his job. He didn't take steps so federal law could be faithfully executed, and order restored. Instead, according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!

Even after it was clear to any reasonable observer that Vice President Pence was in danger… even as the mob carrying Trump banners was beating cops and breaching perimeters… the President sent a further tweet attacking his Vice President. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence. Later, even when the President did halfheartedly begin calling for peace, he did not call right away for the riot to end. He did not tell the mob to depart until even later. And even then, with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.

In recent weeks, our ex-President's associates have tried to use the 74 million Americans who voted to re-elect him as a kind of human shield against criticism. Anyone who decries his awful behavior is accused of insulting millions of voters. That is an absurd deflection. 74 million Americans did not invade the Capitol. Several hundred rioters did. And 74 million Americans did not engineer the campaign of disinformation and rage that provoked it. One person did.

The new Majority Leader, Senator Charles Schumer, gave an address of ten minutes which, had it not been for McConnell's statement, would be regarded as one of the most remarkable delivered in the Senate in decades. It too is a very important historical document and should be part of the record on History News Network. Yet McConnell, despite knowing that the House Managers had made their case, joined the jury nullification of the ideologists and cynics in his caucus. He resorted to the constitutional argument about not impeaching a former President, an argument that defies common sense and was rejected by most constitutional scholars and voted to acquit the man he knew was guilty.

It was here that the master tactictian McConnell made a blunder of probable long-term significance. In so doing, he passed up a fleeting and superb opportunity to convict Trump, then disqualify him from running for federal office, and thus take the offensive in a political fight to retake the GOP from Trump's inflamed base. Instead, McConnell's denunciation of Trump enraged that Trump base, and confounded what is left of a diminishing number of moderate Republicans. Most importantly it left Trump able to brandish his acquittal and denounce the trial as part of "the witch hunt." Wounded but not politically dead, Trump remained a danger to the remnants of the GOP that had any claim at all to respect the rule of law.

McConnell thus sustained the Faustian bargain made since 2016. In so doing he failed to learn the meaning of the mob's chant "hang Mike Pence," the barbaric calls to find House Speaker Nancy Pelosi, or Trump's mocking reference to "Mitch." Trump and his followers will turn on McConnell and the GOP establishment which voted to acquit but shared McConnell's hatred of Trump. Trump and his base will turn on Republican politicians in Georgia, Wisconsin, Michigan, Pennsylvania, and Arizona who refused to submit to Trump's threats to overturn the results of a free and fair election. The split in the GOP was going to happen anyway, but now the cynics in touch with reality will enter that battle with the Trumpists unable to say they had used their considerable powers to inflict on him the defeat he deserved.

Such historical moments when forces are aligned as they were on February 12, 2021 do not come often. Though McConnell made all the arguments needed to convict Trump, he blinked at the crucial moment. In so doing, he seized defeat from the jaws of possible victory. Trump's conviction would not have meant the end of Trumpism, but it would have been a severe blow against the past four years of lies and conspiracies. McConnell's failure to act on what he knew was true and to rally what troops he had in the Senate emboldened Trumpists, and the right-wing extremist practitioners of violence with whom they are now in a relationship of mutual benefit. Before February 12, Republican mantras about law and order and respect for the Constitution had become threadbare. After the acquittal, there is no reason to believe anything McConnell and the 42 other Republican Senators for acquittal say about the rule of law now. Their pleas for bipartisanship are a bitter joke.

In Nazi Germany, the Faustian bargain launched by Franz von Papen and Otto von Hindenburg with Hitler ended in Germany's destruction. The clever cynics who thought they could outsmart Hitler, if still alive in 1945, stumbled through the ruins of their country. In numerous works of historical scholarship, our profession has demonstrated that the German conservatives of the 1930s were nowhere near as clever as they thought they were. They too passed up moments when they could have brought the dictator down. After 1933, that tiny number of German conservatives who dared opposed Hitler paid with their lives.

Mitch McConnell and the Republican senators did not live in fear of the Gestapo. On January 6th, Trump endangered their lives but on February 12 their only fear was of possibly losing an election. Yet, on February 12, with really nothing of lasting significance to fear, McConnell refused to use the power of the Constitution and of the United States Senate to convict Trump. He and his fellow partisans combined cowardice and cynicism with what could turn out to be a major strategic blunder. The Faustian bargain had created habits of self-abasement, cynicism and raw self-interest that proved too difficult to shatter.

Jeffrey Herf, Distinguished University Professor, Department of History, University of Maryland, College Park. His essay "The January 6th Assault on Congress and the Fate of the GOP's Faustian Bargain with Trump: Notes from German History," was published in History News Network on January 31, 2021. His book Israel's Moment: International Support and Opposition for Establishing the Jewish State, 1945-1949 is forthcoming with Cambridge University Press.

Historian: We shouldn't defend democracy 'with half-truths about the past'

We often learn most from people who don't share our worldviews. German Carl Schmitt, a reactionary critic of democracy, provides uncanny insight into the uncivil war of opinion after the 2020 election. Constitutional democracies, Schmitt argues, seek a foundation in legality, that is rule by law, but belief in a state's legitimacy depends on a sense of tradition embodied in myths and symbols.

On January 6 insurrectionists convinced by the lie of voter fraud legitimated breaking the law because they felt that they were, like the liberty-loving Minutemen of Concord and Lexington, protecting the country. The same invocation of the spirit of 1776 animated the Confederacy, which claimed to protect "liberty" while in fact legitimating slavery. After the Union victory, paramilitary white supremacists imagined themselves as Minutemen redeeming the South from a threat to its way of life.

The response of those rightly horrified by the events of January 6 is more complicated. Understanding the threat to democracy by a lawless attack on the symbolic citadel of "the people," they mistakenly conflate rule by law with democracy and rely on myths about the nation's founding after the Revolutionary War and its second founding after the Civil War. For instance, historian Jon Meacham, a frequent media commentator, claims that "the framers intended America's to be a popular, not a legislative, government. The voters acting through the electoral process, not lawmakers in a parliamentary setting, were to determine the occupancy of the presidency." In fact, nowhere does the Constitution mention a role for votes by the people. Art II, sec 1, 2 of the Constitution leaves it up to each state to decide how to determine electors. "Each State shall appoint, in such manner as the Legislature, thereof may direct, a Number of Electors."

And yet cries of "un-American" arise when the Arizona state legislature undemocratically proposes a law allowing it to ignore people's votes and appoint electors in a manner perfectly consistent with the Constitution. Similarly, pundits equate unlawful acts of the insurrectionists on January 6 with ones by Josh Hawley and Ted Cruz on the floor of the Senate, although their challenges to state certifications followed procedures created by an 1887 law still in force. Rather than chauvinistic piety about rule by law, we need to address undemocratic actions enabled by our Constitution and our legal system.

133 years ago constitutional scholar John Burgess criticized the 1887 law for making our flawed system of electing a president worse and therefore producing "a congestion of the body politic until nothing but blood-letting can relieve it." [See more here.] Burgess was prophetic. But he also points to the nation's contradictory past. Like many in the North, as well as the South, he denounced African American suffrage. Nonetheless, he did not have to worry about the Fifteenth Amendment, because it proved ineffectual in protecting Black voters. It is prohibitive, not affirmative. In forbidding states from denying suffrage on the basis of race, it allows other means for suppressing African American and immigrant voters. [See more here.] Unfortunately, partial accounts about the revolutionary change brought about by the constitutional amendments during the nation's second founding distract from the country's need to have an amendment that eliminates legal forms of suppression by affirmatively conferring the right to vote on all citizens eighteen years and older.

The major beneficiary of those partial accounts has been Ulysses S. Grant. Like President Biden, Grant faced the almost insurmountable task of reuniting the country while guaranteeing racial justice. Indeed, commentators, politicians, and media historians, urge Biden to combat domestic terrorists as "Ulysses the Silent" attacked the Ku Klux Klan. Introducing Merrick Garland as his nominee for attorney general, Biden himself praised the Grant administration for creating the Justice Department in 1870 in order to destroy the Klan. What actually happened is a warning, not a model.

Grant did invoke the April 20, 1871, KKK Act to break the back of the Klan temporarily in South Carolina, where his attorney general tried those arrested in federal courts. But success was limited. White supremacists thrived in other states. In South Carolina, most of the Klan's leaders escaped before trial. Furthermore, in the middle of the trials Grant fired his attorney general, most likely pressured by railroad tycoons upset with actions against monopolies. The new attorney general eventually stopped the trials. When ringleaders of the bloody racist massacre in Colfax, Louisiana, on Easter Sunday 1873 appealed to the Supreme Court, they were acquitted in a ruling that paved the way for undermining federal legislation against domestic terrorism. That decision was written by a Chief Justice appointed by Grant and joined by his other appointees. Even worse, in a gesture of national unity, Grant pardoned all Klansmen still in federal prison. [See more here.]

Presidential pardons are part of the Constitution, which also does not forbid a president from pressuring his attorney general. Grant replaced his last of numerous attorney generals the final year of his term during a shuffle in the cabinet when Secretary of War William Belknap was caught selling lucrative positions at Indian trading posts for a profit. Warned of his impending impeachment, Belknap ran to the White House where his friend Grant, without questions, accepted his resignation. The Senate tried Belknap anyway, but he was acquitted because 23 senators, who deemed him guilty, claimed the Senate had no jurisdiction over a private citizen. When, as a citizen, Belknap was indicted in the District of Columbia, Grant intervened and instructed his new attorney general to drop charges, which he did.

Myths about the founders and President Grant cannot restore legitimacy to a democracy in the wake of a second presidential impeachment and acquittal and facing competing demands to unify the country, rebuild the economy, address racial injustice, restore confidence in the presidency and Justice Department, deal with a conservative Supreme Court, and manage a pandemic.

Brook Thomas is Chancellor's Professor Emeritus of English and the Center for Law, Society, and Culture, UC Irvine. His specialty is 19th-century law and literature in the US. He has published six single-authored books including the prize-winning The Literature Of Reconstruction: Not In Plain Black And White (2017), and a case book on Plessy v. Ferguson. A recent podcast on the accuracy and significance of the numerous recent references to Reconstruction in the media and on the floor of Congress is at: https://marktwainstudies.com/mythsofreconstruction/

There's a 'GOP bias inherent in the Electoral College' — and it's another reason to impeach Trump: historian

A friend writes: "I oppose impeaching Trump. Impeachment is the Constitution's procedure for removing a president from office when his/her actions are deleterious to the nation. If the noxious president is no longer in office, the impeachment mechanism is no longer called for."

He adds: "Barring Trump from running again prohibits seventy million people from voting for their candidate of choice. Several score senators do not have the right to overturn the wishes of millions. Any democracy worth anything must give its citizens the right to drive the country off a cliff."

My response:

The point of democracy is to give us good government. To be sure, it's a virtue in itself because it gives people a stake in their government and when it's responsive enhances social trust. But one of its chief virtues is that it is also likelier to give us better results than, say, dictatorships, given that democracies are self-correcting. Though I don't believe that voters are rational actors, when leaders make serious mistakes they are usually thrown out of office. But democracies can be well-designed or badly designed and as a result may not give us good government despite the tendency toward self-correction.

Ours is a case in point. As a result of the undemocratic Senate and the undemocratic Electoral College our system now rewards the GOP. This bias in favor of the GOP inhibits the self-correcting mechanisms. The GOP can fail and still be rewarded with power. Trump came remarkably close to winning re-election despite an unprecedented string of failures because of the GOP bias inherent in the Electoral College. As Andrew Prokop notes, "a shift of just 48,000 votes in AZ, GA, and WI would have resulted in a 269-269 tie." And a tie would have thrown the election into the House of Representatives, which, voting by state, would have given Trump the election.

Given the weaknesses of our system it behooves the Democrats to take steps to remove the threat of a second Trump administration. On this ground alone I'd favor an impeachment trial.

But there are multiple reasons to favor impeachment and conviction.

Impeachment carries two penalties. 1. Removal from office. 2. A ban on holding office in the future. The first is evidently the more serious penalty. That's why it takes a 2/3rds vote in the Senate to convict. The second penalty only takes a simple majority vote in the Senate. But both are included in the Constitution. You have discounted the value of the second feature for some reason, unexplained.

The founders did not say a president is subject to impeachment and conviction except for anything they can get away with during the final months of their term. Yet your approach would in effect amend the Constitution to limit impeachment and conviction in just this manner.

And those final months in a president's term are likely to be the most fraught wherein he is likeliest, if he is so inclined, to break the law and our democracy. For it is just then that he will be fighting for his political life. To let Trump off because he broke faith with his office in the final months of his tenure would set an unfortunate precedent an unscrupulous successor would be sure to take advantage of. Since the GOP is likely to give us another Trump-like figure in the near-future we have to be careful about the precedents we are setting.

The founders fully recognized the usefulness of the impeachment of former officials. As Princeton Professor Keith E. Whittington explained in the Wall Street Journal recently:

"For the Founders, it would have been obvious that the 'power to impeach' included the ability to hold former officials to account. The impeachment power was imported to America from England, where Parliament impeached only two men during the 18th century, both former officers. No U.S. state constitution limited impeachments to sitting officers, and some allowed impeachment only of former officers."

Finally, should the people vote for a second Trump administration in 2024 and get it as a result of the GOP bias in the Electoral College you would likely see a civil war ensue or at least raise the possibility of one. Certainly, the chances of a civil war would not be zero. Why would you take the risk

Rick Shenkman is the founder of George Washington University's History News Network, and the author of Political Animals: How Our Stone-Age Brain Gets in the Way of Smart Politics (Basic Books).


Sarah Palin's case against The New York Times is a landmine for the First Amendment: expert

For more than half a century, conservatives have wanted to eradicate New York Times v. Sullivan, the 1964 Supreme Court decision that is the nation's most important First Amendment case. A trial scheduled for February 1 may give them that opportunity. If the Supreme Court invalidates NYT, federal judges—including the 230 appointed by President Trump—will preside over more libel suits against journalists he calls "the enemy of the people." Those judges can carry out Trump's promise to "open up…libel laws…[and] have people sue you like you've never got sued before."

Anyone who makes factual errors when criticizing government or accusing a person of misconduct could be dragged into court and left destitute by a jury's verdict or legal bills. Public officials with government jobs and public figures—those who are well-known or have entered a public controversy—can win lawsuits that previously would have been unsuccessful.

The NYT ruling is essential to our democracy because it protects discussion of political issues and the fitness of those seeking public office. Justice William Brennan's famous passage in the case exemplifies its significance: "Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

The case arose when civil rights leaders, clergy, and celebrities purchased a full-page ad in the New York Times in 1960 to protest the treatment of Dr. Martin Luther King, Jr. and other civil rights activists by southern authorities and to seek financial support. The ad, with the heading "Heed Their Rising Voices," contained several errors related to the actions of Alabama officials.

L.B. Sullivan was an elected city commissioner in Montgomery who supervised the police department. Although he was not named in the ad, Sullivan claimed that the criticism of the police harmed his reputation, and an Alabama jury awarded $500,000—the full amount Sullivan sought. The jury wanted to send a message to northern media organizations to stay out of the South during the civil rights movement. Similar suits were pending in other southern courts.

The Supreme Court unanimously reversed the jury award in NYT and required that a public official prove that "the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." The "actual-malice" standard focuses on what defendants believed and not what they did. Because almost no one will admit they were unsure about the accuracy of their statements before publishing or speaking, it makes uncovering such evidence extraordinarily difficult. Nevertheless, state and federal courts have upheld numerous jury verdicts in such cases.

Even though NYT serves a vital interest, it is no match for "textualism"—the judicial philosophy that its supporters believe is the only legitimate method of constitutional interpretation. The late Justice Antonin Scalia was the intellectual leader of the textualist movement. His judicial opinions and speeches have been widely influential. Textualism is now so central to conservative jurisprudence that allegiance to it was required of anyone the Trump White House considered for appointment to the federal bench.

Textualists believe that courts must be guided by what the words in the Constitution meant at the time they were written by the founders or when an amendment was proposed and ratified. The Constitution is thus frozen in the 18th century, and judges cannot use the nation's 230 years of experience to support a more enlightened interpretation of constitutional text.

Conservatives ridicule the view that the Constitution can be adapted to changing conditions and values. Justice Scalia said in a speech that the Constitution is "not a living document…it's dead, dead, dead." Textualists believe that if rights—such as those guaranteed by the First Amendment—were not established at the end of the 18th century or when the Constitution was amended, they are not protected today.

The danger is that many of the rights in the original Constitution and later amendments had only symbolic value until judges deciding cases gave them meaning. The First Amendment—which did not protect even mild criticism of government or public officials during the founding era—is an example of how fundamental rights needed time to develop.

Trump-appointed judges

Many judges appointed by Trump were selected because of political connections, not because they were qualified for a prestigious job with lifetime tenure. Judges chosen for their political views and not their knowledge of the law wouldn't be expected to have a deep understanding and appreciation of the First Amendment and other constitutional rights. Their focus will be on implementing conservative policies that legislatures are unable to adopt while pretending to respect the lessons of the founders.

Some Trump nominees had no relevant experience, never litigated a case, could not answer simple legal questions that any competent lawyer would know, and failed to disclose disturbing information on the forms they completed after nomination. Several had strange personal histories that included hunting for ghosts, praising the KKK, claiming that transgender children are "proof that Satan's plan" is working, and supporting the birther controversy about President Obama. Even the most peculiar nominees were approved by the judiciary committee—with no Democratic votes—and if not for embarrassing news reports about their bizarre backgrounds, they would have been confirmed by Republicans in the full Senate.

Senator Lindsey Graham (R-SC), the chair of the judiciary committee, told reporter Bob Woodward for his book Rage that "Some [of Trump's judicial appointees] are a little wacky. Most of them are really good. But a few [are] outliers." Graham recognized that with the removal of the filibuster rule on judicial appointments, the federal courts would be highly partisan: "The problem is when you only need a simple majority [to confirm judges], you don't need to go outside your own party…If you've got to reach across the aisle and pick up 10 [Democratic] votes [in the Senate], you're going to have a different judge than if you don't…the judiciary is going to get far more ideological."

Trump appointed—in addition to three Supreme Court justices—a third of the 850 Article III judges, many of whom are young enough to serve for decades. Only a few presidents have appointed more judges. The White House and Senate Majority Leader Mitch McConnell (R-Ky) made judicial appointments such a high priority that there are no circuit court vacancies for the first time in more than 40 years.

The Trump White House, instead of submitting names to the American Bar Association for a nonpartisan evaluation of potential nominees—which presidents had done since Eisenhower—only considered those vetted and approved by the Federalist Society, a conservative and influential organization of former and current public officials, practicing attorneys, law professors, and law students. The Society would have investigated the nominee's background and record to confirm they support textualism and would uphold Republican orthodoxy.

Textualism and the law

Textualists maintain that when the Constitution is treated as an evolving document, the rulings based on that interpretation are illegitimate. Therefore, conservatives are not only justified in reversing such precedents—like NYT—they have an obligation to do so. If someone wants constitutional protection that did not exist in the founding era or when an amendment was ratified, they can change the Constitution. Textualists don't mention that the Constitution is almost impossible to amend in this political climate. It has been modified only twice in the last half century, and one of those amendments was from the founding era.

Almost no precedent is safe. Several Trump-appointed judges refused to say during their confirmation hearings that Brown v. Board of Education (1954) was correctly decided. When the 14th amendment was ratified in 1868, its equal-protection clause was not intended to integrate society or desegregate public schools. Textualists can argue that if Congress wanted African-American and white school children to attend the same schools, the 14th amendment would have said so. To be true to their faith, textualists must conclude that the Warren Court in Brown was creating law beyond what the Constitution required or permitted, and such decisions are to be made by legislatures, not courts.

It isn't just constitutional law that is at stake. Federal judges decide more cases that primarily require statutory interpretation than those involving the Constitution. Inspired by Justice Scalia, textualists hold that congressional "intent"—as expressed in committee reports and in debates on the House and Senate floor—should be ignored; only the text of the statute should govern the way laws are interpreted. If a legislative body does not include every contingency in the statute—even those that could not be anticipated—textualist judges will strike down or so narrowly construe the law as to render it meaningless even when such a ruling ignores its obvious purpose.

Trump's first appointee to the Supreme Court, Justice Neil Gorsuch, showed his commitment to statutory textualism when he was a judge on the U.S. Court of Appeals for the Tenth Circuit. He criticized the decision by the Department of Labor to reinstate a trucker who was fired for choosing not to freeze to death in subzero weather on the side of a highway. The brakes froze on the trailer Alphonse Maddin was hauling, making it impossible for his truck to move while the trailer was attached. His employer ordered him to stay with the truck and trailer until help arrived. He waited hours in the truck with a broken heater and began to lose consciousness. Fearing for his life, he disconnected the trailer and drove to safety.

Federal law prohibited an employer from firing an employee who "refuses to operate a vehicle because…the employee has a reasonable apprehension of serious injury to the employee or the public." Judge Gorsuch argued that Congress did not specifically include the possibility that a trailer's brakes could freeze and immobilize a truck. In Gorsuch's view, since the truck could be driven, Maddin was not entitled to protection under the statute. Two of Judge Gorsuch's colleagues on the court agreed with the department's decision to give Maddin his job back, which was consistent with the long-established principle of deferring to an administrative agency's expertise if a statute does not directly address the circumstances of a case. But Gorsuch was more concerned with textualist purity than Maddin's life or employment. He ruled, in effect, that by not staying with the truck as ordered by his employer, Maddin fired himself. Gorsuch said it was not his job to help Congress write laws more carefully.

After being sworn in as a justice, Gorsuch joked about the case in a speech to the Federalist Society: "Everyone…who's not a lawyer is going to think I just hate truckers…but so be it…In our legal system, judges wear robes, not capes."

The Supreme Court used such an approach to protect employers from gender discrimination lawsuits in Lilly Ledbetter v. Goodyear Tire & Rubber Co. (2007). The conservative majority created the excuse that Congress did not explicitly say in the law that each paycheck starts the statute-of-limitations clock again. The majority knew that Congress intended to outlaw such discrimination and did not want to set a time limit for bringing a lawsuit that would expire before women could discover the pay disparity. But the majority didn't care about that because they don't think employers should be held accountable for paying women less than men for the same work. Congress was inspired by Justice Ruth Bader Ginsburg's passionate dissent in Ledbetter and admonished the Court's conservatives by passing the "Lilly Ledbetter Pay Equity Act," the first bill signed by President Obama in 2009.

Textualism vs. Originalism

Textualism and "original intent"—often referred to as "originalism"—are not the same, although some jurists accept both approaches to statutory and constitutional interpretation. Justice Gorsuch, in a speech to the Federalist Society after his confirmation said, "Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court." And he added, "Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch."

Originalism appears to be less harmful to the Constitution because it is utterly impractical. Originalists argue that the "intent" of the framers is what matters when deciding constitutional cases. But whose intent counts: The state legislators who chose the delegates to the Philadelphia Constitutional Convention of 1787? The convention delegates such as Madison, Hamilton, Wilson, Morris, Mason, Sherman, and others who wrote and debated the Constitution? The authors of The Federalist—Madison, Hamilton, and Jay? The voters who elected the delegates to the ratifying conventions? The delegates at the ratifying conventions?

And what about the Bill of Rights: The members of the House and Senate who proposed what became the first ten amendments to the Constitution? The voters who elected the state legislators who ratified the amendments? The legislators themselves?

Textualists could argue their method of statutory and constitutional interpretation is more reliable than originalism because it is easier to identify and apply. They only have to discover what the words meant at the time and not the views of the many people involved, directly or indirectly, in the writing of the documents. But textualism is not so pure; it shares some of the most troublesome deficiencies of originalism.

When textualists contend that constitutional interpretation must be limited to what the words meant when they were written, the natural question is: How do you know what the writers thought they meant? To determine what they thought requires knowing what they intended them to mean. A speech at a ratifying convention or on the House or Senate floor; a pamphlet or broadside distributed to the public; a letter written by the one of the founders; a newspaper commentary; The Federalist which was published to win the support of New York voters who were about to elect delegates to the ratifying convention—why do any of those documents conclusively demonstrate how the founders and the public interpreted the text of the Constitution and its amendments? Just because one of the founders made a statement in a letter, even if published, doesn't mean that view was widely shared by other founders or the public.

And what about the Constitution's many general phrases: "due process of law," the "necessary and proper" clause giving Congress powers beyond those listed in the Constitution; the "equal protection" clause? How can originalists—and by implication, textualists—find consensus as to the meaning of those phrases?

Even if we could identify the intent of the people involved in creating our founding documents, why would we want to return to an era when slavery flourished, women had almost no rights, the Bill of Rights provided limited, if any, protection to disfavored groups and individuals, and having property and wealth was often a requirement for public office?

The First Amendment pending crisis

Ironically, the newspaper that had to defend the First Amendment in 1964 is fighting a lawsuit—Palin v. New York Times—that could terminate the actual-malice standard. Former vice-presidential nominee Sarah Palin sued the newspaper in June 2017 over an editorial published after the shooting of Congressman Steve Scalise at a Republican baseball practice. It asked, "Was this attack evidence of how vicious American politics has become? Probably." The editorial then stated that before the shooting of Congresswoman Gabrielle Giffords and the killing of six others at a Tucson shopping center parking lot in 2011, "Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs."

The Times quickly issued a correction, explaining that the link between "political rhetoric and the 2011 shooting of Representative Gabby Giffords" wasn't "established," and the graphic showed electoral districts and not people.

James Bennet, author of the essay and editor of the Times editorial page, testified that he included the connection between the PAC ad and the Tucson attack "to make a rhetorical point about the present atmosphere of political anger." Bennet said that he had not read previously published articles in the Times that showed there was no link between the ad and the shooting, nor did he see a similar article that was published in The Atlantic when he was its editor.

The jury and appellate courts will have to decide whether Bennet and the Times either knew what they wrote about Palin was false or recklessly disregarded whether it was false or not—as required by the actual-malice standard. Even if Bennet did not "entertain serious doubts as to the truth" of the editorial—a phrase used by the Supreme Court in St. Amant v. Thompson in 1968—the courts may find that he intentionally ignored available information that would have undermined the defamatory statements, which can be considered actual malice. In 1989, the Supreme Court ruled in Harte-Hanks v. Connaughton that "Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category."

The textualist undoing of actual malice

Justice Scalia said that if he had been on the Supreme Court in 1964, he would have dissented from the unanimous ruling in NYT because the actual-malice standard did not exist at the time of the nation's founding. In a speech at Wesleyan University in 2012, Justice Scalia said, "There is no doubt that at the time it [the First Amendment] was adopted in 1791, no one thought that this provision invalidated laws against libel—which existed then and have continued to exist ever since. The issue is an easy one…libel laws are constitutional."

Actual malice doesn't just safeguard discussion of politics and government; it protects any defendant sued by a public official or public figure. When women came forward in recent years to tell stories of being harassed, assaulted, and threatened with damage to their careers, some of the accused thought a libel suit might be a way to save their job, vindicate their reputation, and intimidate their accusers. Their lawyers would have told them that unless they could prove the women and the media outlets reporting their stories recklessly disregarded the truthfulness of their statements, they would not win. Without NYT, more plaintiffs would bring such a case, win a jury verdict, and have it upheld on appeal.

No one is as eager to eviscerate NYT as Justice Clarence Thomas. In McKee v. Cosby (2019), Thomas wrote a 14-page concurring opinion supporting the decision not to hear McKee's appeal in her lawsuit against actor Bill Cosby for defamatory statements he made about her. Thomas is one of many conservatives who believes that states should determine their own libel standards and that NYT illegitimately took that authority from them.

This is especially troubling because before NYT, most states allowed punishment for any inaccuracies that could potentially injure reputation. When the First Amendment was adopted, some states even permitted imprisonment and libel suits for truthful speech that criticized public officials or government on the grounds that it leads to a breach of the peace. But that doesn't matter to Thomas: "New York Times [v. Sullivan] and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rule[s]' by balancing the 'competing values at stake in defamation suits.'" And he added, "The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm."

The First Amendment is part of our national Constitution, and the fundamental rights it protects should not vary significantly by state. Without NYT providing nationwide standards for public officials and public figures, and with media outlets reaching across state lines, plaintiffs can file lawsuits in almost any jurisdiction hostile to media organizations.

Although all courts must currently follow the requirements of NYT in cases involving public officials and public figures, the Supreme Court allows states much greater flexibility when it comes to private-person plaintiffs. Judges, not juries, decide whether the plaintiff is a public figure or a private person, and it is often a close call. The decision is crucial because in most states, private persons need only show that the publisher or speaker did not exercise reasonable care when making the statements or that someone else would have acted more responsibly. If Trump-appointed judges share his hatred for the media, they will designate plaintiffs to be private persons if there is any basis for doing so, thus greatly increasing their chance of winning a lawsuit.

Those who want to eliminate NYT may believe that Americans will still have freedom of speech and freedom of the press, but suddenly everything said and written will be accurate because people will know they can be sued. But as Justice Brennan observed in NYT, "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable 'self-censorship.' Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred."

To Justice Thomas and others who practice textualism and originalism, the First Amendment is stuck in 1791—the year it was ratified. Yet the amendment was appallingly ineffective in protecting unpopular speech during its infancy and for many years after. At least 26 people—mostly newspaper publishers—were prosecuted under the Sedition Act of 1798 for criticizing President Adams and the federal government. Even a congressman from Vermont was imprisoned for four months and fined $1,000 for publishing editorials disparaging the president. Justice Thomas's 18th-century First Amendment may include freedom of the press, but those words were useless until judges began to enforce such rights.

Between 1900 and 1917, hundreds of suffragettes were imprisoned for peacefully demonstrating in support of the right of women to vote. In the fall of 1917, 97 were jailed for picketing outside the White House. They were arrested, convicted, and thrown in disgusting and dangerous prisons. At least 33 were tortured with force-feeding and other physical abuse. One of the leaders, Alice Paul, served seven months behind bars. Justice Thomas's 18th-century First Amendment may include freedom of speech and the "right of the people peaceably to assemble," but its words offered no help to those women. These rights are protected today not because the First Amendment was rewritten, but because society changed and judges began to take them seriously.

If the Supreme Court ends actual malice, it may allow states to adopt it for their courts. But that would likely have to be done by legislatures which have little experience or interest in such laws. It has generally been judges, and not lawmakers, who have protected First Amendment rights. Furthermore, both state legislators and state judges must periodically be elected or retained by voters, and they may not want to bring back NYT if large numbers of their citizens believe media organizations knowingly disseminate "fake news."

It is harmful to the nation and our fundamental rights to treat the Constitution as if it "died" at the end of 18th century. Conservatives claim that judges who find aspirational values in the Constitution are judicial "activists" who disregard the instructions of the founders. Yet, it is textualism and originalism that are dangerous in the hands of judges determined to use the legal system to impose their views on the nation.

The long-overdue end of the 'serious' conservative

One of the challenges in trying to understand what has happened to a conservative movement that has clearly become detached from reality, is that for decades we've heard that some conservatives needed to be taken seriously as intellectuals. These chosen conservatives are often anointed as "serious" due their academic pedigree (usually Ivy Leaguers). But the equating of impressive degrees with intellectual seriousness has an especially bad track record for conservatives. Time and again when it comes to the integrity, honest analysis, and basic grasp of facts that are the basic standards of any "serious" scholar, they have failed.

Let's make a list of today's conservatives who currently get the "serious" designation by virtue of their elite education and for not being Louis Gohmert. In light of last week's conspiracy-driven, right-wing attack on Congress, Senators Josh Hawley and Ted Cruz stand out for their unrelenting intellectual dishonesty. Both Hawley (Yale, JD) and Cruz (Princeton BA, Harvard JD) took to the floor of the Senate just hours after right-wing collaborators had vandalized the Capitol and threatened their colleagues out of an unmoored conviction that the 2020 election had been stolen. Multiple recounts, election certifications, and dozens of court cases later, these two Ivy Leaguers shamelessly continued to raise "concerns" about the election's basic fairness. Yet, when Hawley lost his book contract on the dangers of "big tech" with Simon & Schuster over the weekend, the Washington Post's Fred Hiatt expressed a hesitant reservation at a publisher deciding it didn't like the author instead of the manuscript.

Up until that point, Simon & Schuster "obviously believed" that Hawley's manuscript had "merit" and Hiatt assumes that it would have made "a useful contribution to public debate on a vital subject." Especially after Hawley's surreally dark turn last Wednesday night, why should we assume that a "useful contribution" was forthcoming from him on any debate? Hawley had led investigations into Google and Facebook, to be sure. But certainly part of the answer is that Hawley was seen a "serious" conservative. Ana Marie Cox's recent Washington Post article on Ted Cruz meanwhile stands out for her refreshing willingness to suggest that perhaps, just perhaps, Cruz, despite his reputation for smarts, is "devastatingly average." Mimi Swartz has also started to peel the protective cover of seriousness back. Cruz used "his pseudo-intellectualism and his Ivy League pedigree as a cudgel." And now, she adds, "Any decent soul might ask: If you are so smart, how come you are using that fancy education to subvert the Constitution you've purported to love? Shouldn't you have known better?" Assuming that an Ivy League degree translates into conservatives knowing better has been the problem all along. Swartz adds correctly that Cruz "did know better; he just didn't care." And because he was tabbed as a "serious" conservative, he didn't have to.

Senator Tom Cotton (Harvard BA, JD) stood out last Wednesday by not joining his fellow Ivy Leaguers in their objections on the Senate floor; but he'd already shown his flair for dangerous hyperbole and distortion last summer when the New York Times ran the Senator's opinion piece calling for the troops to march on Black Lives Matter protestors. Cotton cherry-picked the most extreme examples of unrest to malign the overwhelmingly peaceful protests happening on the streets. As any scholar will tell you, cherry-picking the evidence is both lazy and untrustworthy. Not a good look for someone posing as a "serious" conservative.

And one could go on. What really connects these elite-educated Senators is precisely their lack of seriousness intellectually. It's not new, however. Going back to the 1960s, alarmed that the conservative movement was falling into the grips of the delusional John Birch Society, William F. Buckley (Yale, BA) was anointed as that generation's "serious" conservative. While Buckley was public intellectual rather than an office-holder, his political influence was considerable and timely for the conservative movement. In particular, Buckley disavowed the Birchers, whose view of the world was rife with conspiracy theories and seething anti-communism. Some Birchers were convinced that Dwight Eisenhower himself was a communist plant, so the bar was pretty low here for a "serious" conservative to clear. The soft bigotry of low expectations, I guess. But Buckley also wrote in 1957 that the white South was right to oppose the civil rights movement because, he wrote, "for the time being, it is the advanced race." This was, he continued, "a fact . . . that cannot be hidden by ever-so-busy egalitarians and anthropologists." While over his long career Buckley did continue to reexamine the state of conservatism – indeed he had grave reservations about the war in Iraq – his entry into the ranks of "serious" conservatism was by virtue of his patrician background and elite education. Once in, like the "serious" conservatives of today, he had permission to be either wildly wrong or occasionally right.

In between Buckley's heyday and the current crop of Ivy League-right wingers, we had the era of William Bennett and Newt Gingrich in the 1980s and 1990s. Bennett (Williams College BA, University of Texas PhD, Harvard JD) harrumphed his way to becoming the nation's high school principal, or officially, the Secretary of Education, under Ronald Reagan. In the early 1990s he published The Book of Virtues: A Treasure of Great Moral Stories. It started with a quote from Plato's Republic, and invoked Aristotle in the first paragraph, so you knew it was serious. The book included lessons on the importance of saying "please" and a Laura Richards poem, "In which we which learn to sit still." That this was heralded as an "important" book can only be attributed to the fact that Bennett had earned his stripes as a "serious" conservative. Newsweek practically sighed with gratitude: "Maybe this is just what the country needs."

And then there was Newt Gingrich (PhD, Tulane). After having been denied tenure at West Georgia College, Gingrich eventually won a seat in the House of Representatives in 1978. He injected into the increasingly conservative Republican Party the slashing political style we all recognize now. Democrats were not simply the opponent, they were "radical" and "traitors." Pundits and columnists of the 1990s raised their collective eyebrow over Gingrich's style even as they soberly reminded their readers that Gingrich had a doctorate and had been a college professor. A 1995 New York Times profile noted that he compared himself to, "Washington, Lincoln, Roosevelt, Eisenhower, Churchill, and De Gaulle." But it also noted that while Gingrich "came to congress in 1979 as a 35 year-old history professor," he often used "hyperbole, absolutes and distortion to make his points, and he can be careless with facts and numbers." While perhaps these are just tools of the trade in politics, they make one unserious as a scholar. But Professor Gingrich has dined out for years now on his farcical reputation as a "serious" conservative.

Like Gingrich, today's elite-educated conservative politicians continue to get a pass when it comes to the basic ethical standards of real scholars, especially the moral obligation to be true to the evidence and facts. Ironically, toward the end of that long day of sedition last week, this principle was articulated poignantly by another conservative, one known more for his religion and wealth than his academic credentials. Mitt Romney (Harvard, JD/MBA), looking exhausted and shaken, pleaded with his fellow Republican senators, "The best way we can show respect for the voters who are upset is by telling them the truth." Sadly, Hawley, Cruz, Cotton, et al., will likely continue to spread lies to keep their conservative base shored up. Their seriousness lies in the danger of their politics, but they themselves are not "serious" conservatives.

Charles J. Holden is a professor of History at St. Mary's College of Maryland. His most recent book is Republican Populist: Spiro Agnew and the Origins of Donald Trump's America (UVA Press, 2019), co-authored with Zach Messitte and Jerald Podair.

Trump's pardoned allies may not be 'safe' as they think: legal scholar

The Constitution endows the President with the "power to grant reprieves and pardons for offenses against the United States." Pardons have generally been granted after conviction and sentencing, but since Ford pardoned Nixon, there is precedent for pardoning someone who has not even been charged with a crime. Lawyers call this a "pre-emptive pardon." But is any kind of pardon valid when riddled with corruption? The question would appear to answer itself.

A close analogy would be a contract with the government infected with a conflict of interest because the procurement officer's daughter's father-in-law owns a stake in the counter-party. Lawyers would say that such a contract is void ab initio, lawyerspeak for void and of no legal effect.

Trump recently pardoned 26 individuals. Among them were the four paid assassins of 17 Iraqi civilians, including two boys 8 and 11. The four assassins worked for an outfit called Blackwater. Blackwater's guiding spirit is Erik Prince, a close Trump ally and the brother of his education secretary, Betsy DeVos. Michelle Goldberg, writing in the New York Times, called the Blackwater war crimes pardons the "most disgusting." Republican Senator Ben Sasse of Nebraska called the pardons "rotten to the core."

Included in the spate of pardons is a convicted Trump family member (his daughter's father-in law), and three convicted political cronies, who would be prime candidates to testify against him should the Russia probe get new legs after Trump leaves office.

More pardons are strongly rumored to be in the on-deck circle in the final days of the Trump administration. Trump may pardon Julien Assange, the guiding spirit of WikiLeaks, who knows whether someone associated with Trump gave him a trove of emails, which the Russians hacked from the Democratic National Committee and the private servers of Hillary Clinton. Also on the pardon horizon are Trump's older children, his lawyer and close associate Rudy Giuliani, as well as the big enchilada, Trump himself.

But are the pardons void from the start when corrupt, and intended to abuse public power for the private benefit of the President? I say private benefit, because the triumvirate of pardon recipients, Manafort, Flynn and Stone, are potential witnesses against Trump after he leaves office. And then there is the family member and the political cronies.

The Supreme Court held in 1878 in Throckmorton v. United States that "fraud vitiates everything." By "fraud," the Court did not mean the kind of phony fraud Trump and his lawyers are alleging is sufficient to overturn the election That's a nice try. The Supreme Court meant fraud established by clear and convincing evidence solidly grounded in factual support. The principle that fraud vitiates all is a venerable one, and has been reaffirmed over centuries of English and American law. Fraud would embrace within its bosom corruption and conflict of interest.

Suppose a President corruptly pardoned someone. Suppose a President accepted a bribe in exchange for a pardon. The Constitution says that bribery is a "high crime and misdemeanor" for which a President can be impeached and removed from office. The President could be removed, but would the pardon be good? I would argue not, and so would many lawyers I know. Such a pardon would be a fraud on the Constitution he swore to "preserve, protect and defend."

The Constitution also defines treason as another "high crime and misdemeanor" for which a President could be impeached and removed, so could a presidential pardon of the President's confederates in a treason conspiracy conceivably stand? I would argue not, and so would many lawyers I know.

Corruption is defined as betraying a public trust for personal benefit. Isn't the pardoning of a potential witness against you, a corrupt act by a President? Or pardoning a close relative? Need a personal benefit be a cash payment, or can it also be something else of personal value? The act of pardoning a potentially cooperating witness may in itself be an obstruction of justice even if the pardon is valid. But isn't the pardon null and void under the doctrine of "fraud vitiates everything?"

If the President pardons someone corruptly, he may in contemplation of law be really pardoning himself. Here, there is no clear authority because no President has ever tried it before. But limitations on self-pardon come from a number of legal sources.

First, there is the venerable English principle, which requires no discussion that "no man shall be the judge in his own cause." And certainly not Donald Trump.

Then, the Constitution speaks of the President's "power to grant reprieves and pardons." Madison and Hamilton could have used the words "confer" or "give", had they wanted to, but they chose the word "grant." Under settled legal definitions, the term "grant" comprehends "everything that is granted or passed from one to another." Napoleon may have crowned himself emperor, but the President of the United States cannot "grant" a pardon to himself.

In addition, the Constitution specifically bars the President from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution.

The provisions, read together, would make no sense if the president could pardon himself because if he did, he would not be subject to criminal prosecution after impeachment, the very remedy the Constitution explicitly preserves.

Are self-pardons OK? How about unlimited preemptive pardons? The two questions may seem unrelated, but they are not. Presidents who assume they can pardon any and all federal crimes they themselves may have committed while in office will know from the time of their inauguration that they are above the law, not the servant of the law. The Supreme Court has rejected this argument whenever it has been presented.

Curiously, almost all the pundits, constitutional lawyers, and members of the professoriate are laying down their arms, largely conceding that the President has broad powers to pardon anyone in the world, with the possible exception of himself. But are they giving too much away?

Of course, the issue of whether corrupt pardons stick, will only arise if Biden's Attorney General tries to indict a pardoned wrongdoer. But don't rest so easy, Manafort, Stone and Flynn. And, don't be so certain, Donald Trump, either. You may not be so safe as you think.

James D. Zirin, a lawyer and former federal prosecutor, is the author of Plaintiff in Chief-A Portrait of Donald Trump in 3500 Lawsuits.

Is the Republican Party fascist? An expert explains the 7 themes that dominate fascism movements

Writing in the Washington Post four years ago, journalist Michael Kinsley gave this blunt assessment of the man about to become president:

"Donald Trump," Kinsley wrote, "is a fascist."

Four years later, it's fair to ask: Is the Republican Party fascist?

It's an incendiary question. It's also a serious one. Even after the assault on the U.S. Capitol, eight Senate Republicans and 138 Republican members of the House of Representatives still voted to overturn a free and fair presidential election. It is just the latest example of a party that is well to the right of most conservative parties in the democratic world.

That alone wouldn't make the Grand Old Party fascist. The word itself is hard to characterize. As one of Adolf Hitler's biographers has put it, "trying to define 'fascism' is like trying to nail jelly to the wall."

But it's also real, as I learned working for an English-language newspaper in Rome in the mid-1980s. There, I attended a neo-fascist rally in the Piazza del Popolo complete with searchlights and elderly men, all wearing the same berets, a sign, my interpreter told me, that they once belonged to Benito Mussolini's infamous Blackshirts.

While no two fascist movements are entirely alike, during fascism's heyday in the 1920s and 30s, they shared several common themes. All of those themes are present in today's Republican Party.

Fascists are anti-democratic

All inter-war fascist movements took part in elections with one goal in mind: to destroy democracy and create a one-party state.

That's happening today in Poland, in Hungary, in Turkey.

Here, it is the idea that only Republicans can legitimately win at the ballot box. While this goes to the heart of the attempt to overturn November's presidential election, the claim isn't new.

The same was said of Barack Obama's elections (he wasn't really born in this country) and Bill Clinton's victories (he only won because of Ross Perot's third-party candidacies). If the elections aren't legitimate, neither are the presidencies. The same strategy will be used to undermine Joe Biden.

More than that, Republicans believe only they deserve to win. As far back as 1984, Ronald Reagan declared the GOP is "America's party.''

Such thinking leads in one direction. If Republicans are "America's party" then Democrats are the "anti-America party." From there it's a small step to believing that only Republicans can legitimately win at the ballot box, that Democrats only win by cheating. If saving the country from such a party means resorting to strategies like voter suppression — or violence — so be it.

Never mind that this turns the American experiment in self-government on its head. If democracy means anything, it means your side sometimes loses.

That simple fact ought to be clear to every American. Yet it, and Wednesday's attempted insurrection, did not stop Congressional Republican diehards from voting to reject the electoral votes of several states for no reason other than the fact that they didn't like the outcome of the presidential race.

Fascists attract followers with the "big lie"

For Mussolini the big lie was the "mutilated victory" after World War I, a stain that would be wiped out by establishing an Italian empire in the Mediterranean.

For Adolf Hitler the big lie was the "stab-in-the-back," that the "November criminals" caused Germany's defeat in the same war, a stain that would be wiped out by getting rid of the Weimar Republic.

For Trump one big lie isn't enough. He has two of them.

Trump's first big lie was what he called "American carnage," a fantasy America overrun by crime, drugs and illegal immigrants.

Whether the crisis is real or not is beside the point. The national rebirth, the liberation will be achieved by one man: the party's leader. He, and he alone will restore the nation to greatness. Or, as Trump declared: "I alone can fix it."

Trump's second big lie is that he won a landslide in the 2020 election — a victory that a new batch of "November criminals" has conspired to deny him and his followers. That was the message of his "Save America" rally on Wednesday, which immediately preceded the attack on Congress.

However, this comparison involves more than individuals. Neither Mussolini nor Hitler could have come to power without the help of established conservative politicians. Both men were tolerated because they brought with them large numbers of voters for whom these older parties had lost any appeal. Once in office, these politicians reasoned, the fascist leader wouldn't know what to do. He would be their prisoner. Meantime, they could draw from his well of new voters to hold onto power. As one right-wing leader said of Hitler: "We are hiring him."

The bargain made by Italian and then German, conservatives was clear: They chose the fascist option. They knew what they were doing, and they did it anyway.

That same reasoning led Republicans like Mitch McConnell to back Trump's bid for the White House. The "adults in the room" would keep him in line. They didn't, and they couldn't.

Even with Trump headed out the door, the same cynicism explains why congressional Republicans jumped on board the effort to reject Biden's legitimate victory — and why some stayed on board even as a pro-Trump mob forced them to shelter in place and then flee the House and Senate chambers. Since more than a few of them have their own presidential ambitions, they don't really want to keep Trump in the White House. They do want to keep his voters, so they can replace him. That is why Ted Cruz and Josh Hawley chose to stick with their protest of the Electoral College vote.

To be fair, some Republicans have stood up to Trump's subversion of democracy. Unsurprisingly, however, their numbers grow the further away they are from the center of national power. While local elections officials bravely carried out their responsibilities, while state officials refused to "find" votes that would tip the results in Trump's favor, some Congressional Republicans also refused to go along with this blatant power grab. Most striking was the decision of former Republican defense secretaries who joined their Democratic counterparts to warn against use of the U.S. military to thwart the will of the American people.

Yet, these examples at the federal level have been few and some are "profiles in courage" only for the most opportunistic of reasons in the Republican civil war that is sure to come.

Fascists celebrate violence

Mussolini was handed power in Italy thanks to the violence and general chaos brought on by his paramilitary Blackshirts. Hitler's stormtroopers used the same tactics in Germany.

The Proud Boys, along with other right-wing groups pledged to back Trump, have not yet become the equivalent of the Squadristi or the Sturmabteilung. And Trump boasting that he would like to "punch" protestors at his rallies may have once seemed like little more than preening.

But these appeals to violence are dangerous. Republicans have done nothing, practically speaking, to stand up to them, even as the level of violence around Trump rallies escalated.

There is an equally disturbing parallel development. As violence spiraled out of control in early 1920s Italy, the police and army moved toward collusion with the Blackshirts in their battles with opponents.

Here, most local and state police officers faithfully carry out their duties every day, not knowing if they will come home that night. Some don't. Capitol Hill Police officer Brian D. Sicknick, died at the hands of Trump supporters while he defended this nation's elected leaders.

Yet around the country, others in law enforcement have shown an affinity for right-wing groups, particularly a shared antipathy toward equal justice protestors. More troubling are reports of growing infiltration of police agencies by the far right.

Whether because of this embrace or because they misperceive the threat, local and state law enforcement authorities seldom have taken action against right-wing paramilitaries, even in the notorious invasion of Michigan's statehouse last year. Escalating provocations went unchecked. The contrast between that and the treatment meted out to often peaceful demonstrators is too obvious to ignore, and was crystallized by the ineffectual preparation for and response to Wednesday's assault — which, it bears repeating, was a violent attempt to stop Congress from carrying out its constitutional duty.

Fascists reject established values and objective facts

Fascists dismiss notions like rationalism, egalitarianism, and scientific enquiry — in short, a fact-based world.

The examples of Trump breaking norms and rejecting reality when it suits him are so numerous that there's no point rehearsing them. What's surprising is that anyone has been surprised at how the rest of the GOP was so quick to parrot what Trump aide Kellyanne Conway infamously called "alternative facts."

The rot was evident in the earlier George W. Bush administration, when an aide told writer Ron Suskind that Republicans no longer inhabit the "reality-based community."

"That's not the way the world really works anymore," this aide told Suskind in 2002, "and when we act, we create our own reality."

The problem with this thinking, of course, is that reality — whether it's global warming, or a pandemic, or the results of an election — cannot be wished away.

Fascists have no time for women's rights

Women are crucial to the fascist ideal as wives of virile fascist men and as the bearers of the next generation of fascist boys and girls. But as for equality between the sexes? Forget it.

Fascist states in the 1920s and 1930s classified single women as second-class citizens. Married couples were pressured to have large families; married couples without children had to pay a tax penalty. Mussolini's Italy outlawed contraception, and both his regime and Hitler's banned abortion. Nazis called the operation "racial treason."

Of course, not all abortion opponents are fascists. But all fascists oppose abortion.

The point, again, is that, with the exception of Poland's Law and Justice party, today's GOP is an extremist outlier when it comes to the issue of women's rights among western conservative parties. The same is true of both Law & Justice and the Republicans when it comes to LGBTQ rights.

Fascists abandon their mass of followers once in power

Although fascists build their movements on the backs of middle- and working-class voters, they're quick to abandon them in favor of alliances with the nation's elites: business leaders, bankers, etc. They will still pay lip service to their base; the demands of their new friends, though, come first.

Mussolini attracted support from industrialists such as the auto giant Fiat, and the tire manufacturer Pirelli. The chemical giant I.G. Farben and other German industrialists quickly fell in line shortly after Hitler came to power. In return, both men guaranteed a workforce unprotected by labor unions and one that could be harshly disciplined.

Republicans are long practiced at claiming to champion "Main Street" while their policies overwhelmingly benefit Wall Street, often to the detriment of the "real Americans" they claim to represent.

The 2017 tax cut, the only substantive legislative achievement of Trump's presidency, is a case in point. Just a year earlier, he had promised to cut the taxes of working Americans at the expense of the wealthy. What Americans got was the biggest corporate tax cut in their history at the price of an additional $1.5 trillion of debt over 10 years.

Fascists thrive in a power vacuum

No fascist movement achieves power without help from its opponents. During the inter-war years, men and women were drawn to the fascists once they decided that politicians were more interested in their own petty squabbles. They were either unable or, worse, unwilling to solve the threats plaguing their lives of ordinary people, climaxing with the Great Depression.

The pull of the far right is evident, today, and so are many of the same problems: joblessness; a widening gap between rich and poor; crime; racial and ethnic tensions; poor health care and educational opportunities; threats from across the globe (then, the march to another world war; now, a pandemic).

Republicans could work with the incoming Biden administration to deal with these crises and restore faith in American democracy. Instead, they seem bent on further undermining that faith, thinking it will set them up to grab power later on.

Before this past week, too many in the GOP seemed too willing to choose the fascist option. Now they have seen what it looks like and where it leads. The question Republicans must answer is simple: Will they choose fascism anyway?

Here's the psychology behind election denial

Surveys taken several days after the presidential election show that most Republicans believe Trump really won the election. A Reuters/Ipsos opinion poll reported on November 18, fifteen days after the presidential election, that 52% of Republicans thought Trump won. Later surveys indicated that between 70% and 80% of Republicans do not buy reports of Biden's victory. They think the election was rigged and claim enough fraud occurred to tip the balance.

Why do so many Republicans refuse to acknowledge overwhelming evidence that confirms Joe Biden's victory? Millions of Republicans continue to accept myths about a stolen election. Facts do not influence their judgment. Evidence does not shake beliefs.

Obviously, the President and the national media influenced the thinking of many Republicans. Donald Trump frequently asserted that he won. Trump insisted that a mysterious disappearance of ballots and manipulation of tallies indicate fraud. Commentators on Fox News, Newsmax, and other media back the president's specious claims. But there may be an explanation from the field of psychology that explains defiance of the facts as well.

University of Michigan psychologist Christopher Peterson cited the idea when pointing to a rumor that spread across the Internet in 2011. The message claimed the world would end at 6 PM on May 21, 2011. After the projected date passed without a calamity, several people refused to recognize they'd been duped. "How many folks acknowledge that they were mistaken when the ensuing facts stare them in the face?" Peterson asked. Some do but many do not, he stated. "People will go to great lengths to maintain consistency among their beliefs, even when they prove to be blatantly wrong."

Christopher Peterson based this interpretation on research by a famous psychologist who conducted groundbreaking investigations in the 1950s. Leon Festinger developed the concept of Cognitive Dissonance, which suggested why some people hold firmly to beliefs when confronted with contradictory evidence. An investigation that helped launch his theory related to a group of people that believed a Chicago woman's prophesy that a great flood would destroy the world on December 21st. When the disaster did not occur, many followers did not acknowledge they had been misled. They accepted the cult leader's explanation that God spared them because of their devotion, commitment, and action. Rather than change their minds, those true believers became more intensely faithful. They attempted to persuade others, trying to broaden membership in the cult.

Leon Festinger followed up this study (published in a book, When Prophesy Fails) with several experiments that demonstrated the significance of Cognitive Dissonance. When confronted with contradictory information, Festinger observed, individuals often feel uncomfortable. Their personal beliefs or hopes are contradicted by hard facts. People reduce that dissonance (inconsistency) by avoiding situations or information that intensifies their discomfort. Especially when individuals have deep convictions and take significant actions in support of them, they are reluctant to question cherished ideas. If they are associated with a large group of people committed to the belief, their fidelity often becomes more severe. They find comfort in numbers.

Cognitive Dissonance appears to be a factor in the persistence of belief and loyalty displayed by many Republicans despite hard facts that indicate Joe Biden's substantial victories in the Electoral College and the popular vote. Over a period of four years, members of Trump's base enthusiastically accepted untruths disseminated by the admired leader. They were not inclined to challenge Trump's controversial statements and misrepresentations.

Now, after Trump's stunning defeat at the polls, they are hearing the president and his enablers on television, radio, and the Internet claiming information reported in the national media is false. To accept facts reported outside the partisan bubble can, indeed, produce the kind of emotional discomfort Festinger described. Many Republicans are acting in ways Festinger would predict. When dealing with the clash between internal beliefs and external realities, they adhere to beliefs.

Furthermore, as Festinger showed, Trump's hard-core supporters discover comfort in numbers. They proselytize, hoping to expand the size of their group and build an impression that favored ideas enjoy widespread acceptance. During the weeks of extensive media attention to Trump's fruitless legal and rhetorical efforts to deny Biden's victory, true believers among the president's followers tried to shore up their cause. They shared favorite reports on websites about supposed mischief in the tabulation of ballots, trying to legitimize claims that Trump and his enablers had been making in the national media.

Psychology cannot provide all the answers to the intriguing question of why so many Republicans refuse to change their minds in the face of abundant factual evidence that contradicts their ideas about the presidential election. But insights developed long ago by Leon Festinger and other social scientists may explain, to some degree, why this puzzling behavior occurs.

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