Category: reason

The riots that gripped the Capitol on January 6 were overwhelmingly the fault of President Donald Trump’s supporters, who stormed the halls of Congress, vandalized lawmakers’ offices, and assaulted police officers in some hopes of preventing the certification of Joe Biden as the 46th president of the United States.

That conservative protesters—and not leftist provocateurs—were responsible was plainly obvious as the mob violence unfolded. A week later, following dozens of arrests, it is no less true: Trump supporters did this, and any effort to paint antifa as the real culprit is pathologically dishonest.

That has not stopped Trump defenders from trying. Former New York mayor and current Trump attorney Rudy Giuliani hinted at “antifa involvement” in a tweet. Rep. Paul Gosar (R–Ariz.) said the riots “had all the hallmarks of antifa provocation.” Trump himself has privately blamed antifa for what transpired, according to reports.

The day after the riot, I wrote a piece for Reason explaining why the assertion that antifa had any significant involvement in the riot was false. I noted that many of the rioters were captured in photographs, and are clearly sincere MAGA people:

Several of them, including “groyper” leaders Nick Fuentes and Baked Alaska, are well-known to the media by now. The woman who was sadly killed by police under circumstances that require further investigation was genuinely pro-Trump. The guy who sat in House Speaker Nancy Pelosi’s chair and stole her mail is definitely not antifa, nor is the half-naked fur-and-horns guy. This latter individual is named Jake Angeli, and he is a conspiracy theorist—the self-stylized “Q Shaman”—who has appeared at multiple Trump rallies.

Law enforcement has subsequently arrested scores of rioters, uncovering no vast antifa conspiracy in the process. With few exceptions, those arrested are exactly who they seem to be.

It is true that a single individual with left-wing ties—the activist John Sullivan—has now been arrested for participating in the storming of the Capitol. This development prompted several commentators on the populist right to claim victory and assert that I was wrong. This is truly absurd; the existence of one person vaguely connected to antifa does not establish that antifa was ultimately culpable for what transpired. Indeed, as I wrote in my article:

Thousands of people were at the Capitol on Wednesday, and many of them caused trouble. It’s possible that someone, somewhere, was trying to falsely pin a crime on a Trump supporter. But the many acts of violence and intimidation that transpired in the halls of Congress yesterday were overwhelmingly and provably committed by the president’s most fervent supporters.

That take has not merely held up—it has been proven correct. The FBI does not believe antifa was involved. Overwhelmingly, those arrested have been associated with the far-right, not some antifa plot.

That’s also the conclusion of reporters working for conservative news website The Daily Caller and The Daily Caller News Foundation, which were founded by Fox News commentator Tucker Carlson.

“The Daily Caller and the Daily Caller News Foundation had a combined six reporters at the Capitol building during the riot, all of whom said the crowd and the participants did not seem to include a significant antifa presence,” wrote Chuck Ross and Andrew Kerr. “Most of those reporters spent the summer covering Black Lives Matter and antifa protests and riots.”

Antifa is a real threat, and I’ve spent years documenting its illiberal activities. Most recently, antifa protested a book store for daring to sell a book by the antifa-critical writer Andy Ngo. (The predictable result of their efforts was that Ngo’s book surged to the top of the Amazon bestsellers list.)

But that doesn’t mean it’s fair to pin every example of mob violence on antifa. We know who caused the Capitol riots: supporters of the president who heard his call to protest the outcome of the 2020 election and took action.

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A legal dispute played out in court Thursday over whether Amazon had inappropriately deplatformed Twitter-alternative Parler when it suspended the site’s hosting on Amazon Web Services last weekend.

Parler’s attorneys asked a federal judge in Seattle to compel Amazon to restore its cloud service. Parler filed an antitrust suit Monday claiming that Amazon acted with “political animus” when it suspended its account late Sunday night. On Thursday, lawyers denied the site was used to incite last week’s breach of the U.S. Capitol building.

Amazon responded by calling the lawsuit “meritless,” and said that Parler’s refusal to remove overtly violent content after repeated requests to do so was the reason Amazon cut off its hosting services.

Parler claims that Amazon had an incentive to conspire against its platform: Namely, Amazon recently signed a deal to provide web services for Twitter. To support its claim of unfair treatment, Parler notes that Twitter was not reprimanded or punished by Amazon for the hashtag #HangMikePence, which was trending the day before Parler’s suspension. Parler asserts that Amazon’s choice to suspend its hosting was “designed to reduce competition in the microblogging services market to the benefit of Twitter.” 

Amazon has denied these accusations and cites Parler’s unwillingness to delete content that threatened public safety “by inciting and planning the rape, torture, and assassination of named public officials and private citizens” as the sole reason for its suspension. Amazon says it repeatedly notified Parler that its content was in violation of user terms and chose to take action only as a “last resort.” 

Does Parler’s claim have any merit? Cindy Cohn, executive director of the Electronic Frontier Foundation and an attorney who specializes in internet law, tells Reason that for Parler’s antitrust claim to hold up, it must be established that Amazon and Twitter have a shared purpose in driving Parler out of business.

“I think it is a high bar,” Cohn says. “I don’t see that the facts support it.”

“The claims are really weak, legally and factually,” she says. Even if it were to be proven that Parler was explicitly targeted for political reasons and that Amazon’s policies were not implemented fairly, Parler would still fail to furnish the evidence required to prove an antitrust violation.

“A business gets to decide who it does business with,” Cohn says. “Nothing in this complaint demonstrates collusion between Twitter and Amazon.”

In an interview with the Washington Examiner, University of Pennsylvania law professor and antitrust expert Herbert Hovenkamp said that Parler’s claims of political discrimination may actually work against them. “If its intent is to exclude views because they threaten violence or lead to distrust of government but not merely to eliminate a competitor, then the exclusion is probably not covered by antitrust law.”

Even though Cohn has severe doubts about Parler’s case, she nevertheless has concerns about Amazon controlling such a large part of the cloud services market.

“The bigger problem is that Amazon doesn’t have a lot of competitors,” Cohn says. “I would like to see more competition in web hosting. If kicked off, it is difficult to find an alternative place.” 

Amazon Web Services currently controls about one-third of the global cloud market, almost twice that of its closest competitor Microsoft.

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Following in the footsteps of Gavin Newsom and other politicians, Mayor Remy finds it hard to obey his own COVID-19 restrictions.

Shaggy “It Wasn’t Me” parody written and performed by Remy; music tracks and mastering by Ben Karlstrom; video produced by Austin Bragg

LYRICS:

Yo, man (Yo)
Open up, man (Yeah, what you want, man?)
My constituents just caught me (You let them catch you?)
I don’t know how I let this happen (Wait, where?)
The place next door, ya know? (Wait, I thought you ordered the restaurants to close)
Man, I don’t know what to do (Say it wasn’t you)
Oh, right!

Voter came in and they caught me red-handed
Eating at the place next door (Were there a lot of people there?)
Picture this—it was not that vacant
Like a hundred peeps or more
How could I forget that I had
Banned all indoor gatherings?
Just a prime example of a really big hypocrisy

You don’t understand, we’re not like other creatures
Rules do not apply to us, we are the leaders
Voters can’t be trusted to be indoor-eaters
They are more contagious—after all, they’re mouth-breathers
Just tell them it’s important to follow all the law
How any violation might kill a grandma
While you do what you want, even pardon in-laws
Mr. Mayor, how would you prefer your foie gras?
Donated?

Sir, we saw you at a party
It wasn’t me
Eating at The French Laundry
It wasn’t me
You even had the clam chowder
It wasn’t me
Sir, we got you on camera
It wasn’t me
You said we can’t be super-spreading
It wasn’t me
So I missed my brother’s wedding
It wasn’t me
You jailed a barber for hair-dressing
Wait, I have a wedding…
This is getting upsetting…

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Some have complained that the sole article of impeachment adopted by the House lumps together the events of January 6 and Trump’s phone call to Georgia election officials. They think those should be separate charges, in part because the phone call is clear and direct by itself. It occurs to me that it is not too late for the House to split its article of impeachment, if it were inclined to do so. It is also not too late for the House to add additional articles of impeachment, either because Trump does new things or to address past behavior.

There is a broader question about when exactly the House has impeached someone and what actions are necessary for impeachment. I had a series of posts on this when the House slow-walked the articles during the first impeachment. The key moments of House impeachment are when the House adopts a resolution of impeachment and when the House informs the Senate of an impeachment. Neither of those moments requires actual articles of impeachment. The articles of impeachment can be drafted later and/or separately, and they have been in the past.

The articles of impeachment are needed for the Senate trial. They provide the basis for the Senate to evaluate a specific factual and legal allegation and the basis for the officer to mount a defense against a specific allegation. The Senate ultimately votes on whether to convict an officer on each separate article of impeachment (it is sufficient for conviction and removal that one article get a two-thirds vote in the participating senators). The articles are needed for trial, and the Senate will not proceed with a trial without articles of impeachment alleging specific impeachable offenses.

Moreover, current standing Senate rules direct the Senate process to start rolling when the House notifies the Senate that managers have been appointed and articles are ready to be exhibited. Everything else is just backdrop to triggering a Senate impeachment trial.

All of this suggests that it is not too late for the House to revise how it wants to proceed going into the impeachment trial. It could change the line-up of managers by adding a GOP member to the team—which it absolutely should. The House made a mistake by pursuing a highly partisan impeachment process the first time around. It should not repeat that mistake this time, especially when there are now Republicans open to impeachment and a more realistic prospect of securing Republican votes to convict in the Senate. An impeachment trial is, in part, a political process. In order to convict, the House needs to win over Republican senators. It will be harder to win votes to convict from Republican senators if the House leans into partisanship in presenting its impeachment case.

The House could draft new articles of impeachment and have a floor vote on them. It could redraft the existing article of impeachment and have a floor vote to adopt the new version. Trump has already been impeached regardless (probably), but that does not mean that the articles of impeachment are written in stone.

The House could hold impeachment hearings and start explaining to the public why some of the anticipated defenses to the impeachment are wrong or start laying out for the public the facts that support an impeachment.

But until the House formally presents the articles of impeachment to the Senate, the process of preparing for an impeachment trial is not done and there is room to make improvements in how it wants to present the case. Not that I expect the House to do any of this. The House has not yet demonstrated that it is very good at putting together a presidential impeachment.

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The National Constitution Center recently published my article describing ways in which the NCC’s recent “Constitution Drafting Project” highlights some possible areas of cross-ideological agreement on constitutional reform. Here is an excerpt:

The National Constitution Center recently conducted a fascinating exercise in which it brought together three groups to produce their own revised versions of the Constitution: a conservative team, a libertarian team, and a progressive one. Each team included prominent scholars and legal commentators affiliated with their respective camps. The results revealed substantially more convergence on key issues than might have been expected in our highly polarized times….

All three teams agreed that the 1787 Constitution should be revised rather than totally superseded, that there should be tighter limits on presidential power, that the state and federal governments should be stripped of much, if not all, of their “sovereign immunity” from lawsuits, and that immigrants should be eligible for the presidency. It is also likely that the three teams agree on the need for term limits for Supreme Court justices, though the libertarians did not actually include this idea in their proposed constitution…

The major points of agreement between the teams could potentially be the basis for future constitutional amendments that have a real chance of enactment, because of the potentially broad support they attract…..

Even the ideas the three teams agree on would face an uphill struggle in the constitutional amendment process, by virtue of the fact that enactment usually requires an overwhelming supermajority of two-thirds of both houses of Congress and three-fourths of the states. The alternative mechanism of amendment by a convention of the states is comparably onerous. But it is clear that some aspects of the Constitution can use reform. The NCC constitution-drafting project could potentially be the first step in the admittedly difficult process of achieving it.

The article expands on my earlier Volokh Conspiracy blog post about the NCC Constitution Drafting project.

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After the 9/11 terrorist attacks, horrified Americans were ready to embrace virtually any proposal that promised to keep them safe. Government officials, for their part, were eager to curry favor with the fearful public and saw an opportunity to promote legislation and policies that had failed to win support in the past. The result was a surge of authoritarianism from which the U.S. has yet to recover. Now—with the public understandably concerned after the January 6 storming of the Capitol—we should brace ourselves for another wave of political responses that would, again, erode our liberty.

“We’re going to have to figure out how we rein in our media environment so that you can’t just spew disinformation and misinformation,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) told her Instagram followers this week. “It’s one thing to have differing opinions but it’s another thing entirely to just say things that are false. So that’s something that we’re looking into.”

The socialist lawmaker isn’t always careful about her words, but it’s worrying when officials talk about a need to “rein in” the media in any context. There’s really no way to cast government action to that end in a good light, no matter what policy tools are intended (Ocasio-Cortez’s office hasn’t responded to a request for comment). To let government agencies “rein in” the media is to put control over speech and the press in the hands of people who always see benefit in less scrutiny and criticism of their own activities.

That free speech might well take a hit is apparent from the pasting law enforcement is getting for, allegedly, being too considerate of First Amendment rights before the events at the Capitol.

“FBI intelligence analysts gathered information about possible violence involving the U.S. Capitol on Jan. 6., but the FBI never distributed a formal intelligence bulletin, in part because of concerns that doing so might have run afoul of free speech protections,” NBC News reported on Tuesday.

The report goes on to reveal that in preparing for the protest that degenerated into a riot, the FBI did share intelligence with other law enforcement agencies, neglecting only to issue a formal Joint Intelligence Bulletin. But the overall impression left by NBC and by the behind-the-scenes leaks from officialdom on which its reporting is based are that respect for free speech got in the way.

Since then, the FBI has made up for lost time, issuing a bulletin highlighting the “threat of violence” from a range of “ideologically diverse” extremists. The danger is real, as the violence of January 6 demonstrated. But so is the danger of an unrestrained federal agency with a history of interference in domestic policy debates, spying on activists, and even trying to sabotage political parties—revealed in great detail by the 1976 Church Committee report. An FBI stung for being too respectful of individual rights in the recent past may return to its old habits in the future.

In its efforts, the FBI and its allied agencies are almost certain to have the support of the new president. After the storming of the Capitol, President-elect Joe Biden was harsh in his description of the participants. “Don’t dare call them protesters,” he said. “They were a riotous mob. Insurrectionists. Domestic terrorists. It’s that basic. It’s that simple.”

Biden’s choice of language is interesting because, even before the election, his campaign promised to “work for a domestic terrorism law“—an idea reportedly favored by his close advisors. What a new law would look like isn’t clear, but Biden has a history with such legislation.

After the 9/11 attacks, Biden claimed authorship of the Patriot Act, which has been much criticized for the damage it does to civil liberties in the name of combating foreign terrorism. “I drafted a terrorism bill after the Oklahoma City bombing,” he told The New Republic in October 2001. “And the bill John Ashcroft sent up was my bill.”

The uses to which the Patriot Act has been put since its passage should be warning enough to be wary of any legislation proposed in response to the events of January 6.

“The Patriot Act was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet,” the American Civil Liberties Union summarizes. “While most Americans think it was created to catch terrorists, the Patriot Act actually turns regular citizens into suspects.”

“This is really a debate about the standard our government should have to meet in order to obtain personal information about individuals from banks, hospitals, libraries, retail stores, gun shops, and other institutions,” Sen. Ron Wyden (D-Ore.) argued about ongoing controversies surround the Patriot Act in 2011. “Government agents should not be able to collect this sort of information on law abiding American citizens without showing that they have at least some connection to terrorism or other nefarious activities.”

Twenty years after its passage, the Patriot Act lingers on, still threatening civil liberties.

“The government has interpreted a high-profile provision of the Patriot Act as empowering F.B.I. national security investigators to collect logs showing who has visited particular web pages,” Charlie Savage of The New York Times reported just last month. “New tensions have emerged over the extent to which the F.B.I. could use that law to gather logs of people’s web browsing activities, as opposed to using warrants — a tool that requires investigators to first be able to produce evidence that a person probably engaged in wrongdoing,” he added.

Despite much moaning about the absence of a domestic terrorism law, the Patriot Act has had considerable and very intrusive domestic impact on Americans’ privacy.

The fallout from 9/11 also brought us amendments to the Foreign Intelligence Surveillance Act, which authorized mass surveillance campaigns that were exposed by Edward Snowden and ruled unconstitutional only last September. We saw the establishment of the simultaneously creepy and incompetent Department of Homeland Security, and the further transformation of air travel into an ordeal under the groping guidance of the Transportation Security Administration. All of this was presented to a frightened public as part of a necessary response to the attacks in hopes that nobody would notice that the proposals had been gathering dust on shelves, just waiting for an opening.

“Many of the changes have precious little to do with the dangers that we saw on September 11,” George Washington University Law School’s Jonathan Turley told PBS in 2002. “Many of those things are part of a wish list of intelligence agencies that they’ve wanted for decades.”

Given that government officials’ wish list of expanded powers are endless, and that they were calling for new laws well before the storming of the Capitol, we should expect a flurry of legislative proposals in the weeks and months to come. We’ll need to scrutinize them very closely, on the assumption that they’ll be as dangerous to freedom as past schemes to protect us from risks real and imagined.

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