Category: reason

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All three teams agreed that the 1787 Constitution should be revised rather than totally superseded, that there should be tighter limits on presidential power, that the state and federal governments should be stripped of much, if not all, of their “sovereign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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The feds are doing just fine with the tools they have, thanks. So far, 42 defendants have been charged in federal court “related to crimes committed at the U.S. Capitol in Washington, D.C, on Wednesday, Jan. 6, 2021,” according to the U.S. Department of Justice. Several had their initial appearances in court yesterday, January 14. You can find a full list of those arrested and the charges against them here—along with a reminder that law enforcement already has all the power and surveillance capability it needs.

Court filings released yesterday suggest that anyone who had his cellphone on while illegally entering the Capitol on January 6 could face criminal charges if identified.

An affidavit against Cleveland’s Christine Priola—who was first identified through a photo posted to Twitter and is now charged with “Knowingly Entering or Remaining in any Restricted Building or Grounds Without Lawful Authority,” and violent entry, disorderly conduct, and unlawful activities on Capitol grounds—notes under probable cause that “agents were able to recover device location data for January 6, 2021, at 4:23PM” from Priola’s iPhone. 

“This data indicated that the device was utilizing a WiFi system located at GPS coordinates” that “correspond to a location just northeast of the U.S. Capitol building,” Deputy U.S. Marshal David M. Kasulones wrote.

In Priola’s case, the phone data seems to be backed up by photographic evidence, and was only accessed after Priola was otherwise identified as having been inside the Capitol building; it does not appear to be part of a location data dragnet by federal authorities.

That’s good news. And as the DOJ continues to identify people and make arrests based on their many existing tools, we have all the more reason to reject calls for a ramping up of surveillance technology.

“In the days since the attack, the airwaves have been full of former law enforcement officials claiming that surveillance is the answer,” notes Wired. “Even many who are normally critical of policing have jumped on the surveillance bandwagon in the desire to find justice.”

But “we don’t need a cutting-edge surveillance dragnet to find the perpetrators of this attack: They tracked themselves,” writes Albert Fox Cahn. “They livestreamed their felonies from the halls of Congress, recording each crime in full HD.”

And whatever facial recognition tech or other surveillance tools are approved in the wake of the Capitol attack will reach far beyond these particular circumstances, there for authorities to deploy against activists and dissidents of all types, any groups whose ideas those in (shifting) power find scary, sex workers, gun owners, and anyone engaged in harmless but disapproved-of activity.

The same goes for deploying new domestic terror laws or reviving sedition prosecutions.

“Last week’s riot was an attempt to undermine the nation’s democratic procedures. The response from some political elites is unwittingly trying to do the same through calls for unnecessary new terror laws,” warns Branko Marcetic.

Meanwhile, “the history of sedition prosecutions is rife with injustices, and the precedent, once established, becomes a grotesque Frankenstein monster,” writes David Beito.

Before the latest calls to use sedition laws against Capitol rioters, conservatives were crying sedition during summer protests against police abuses. Thankfully, “it’s become very difficult in the United States to bring sedition charges because courts are all too aware of their record as dangerous weapons in the hands of insecure politicians,” notes J.D. Tuccille. “If people horrified by the events of January 6 want to prevent a recurrence, they can best do so not by resorting to a disreputable legal weapon, but by convincing all sorts of Americans that their freedom and security can be maintained under the existing system.”

FREE MINDS

Happy Birthday Wikipedia!https://t.co/iRGWwxMzCs

— Jimmy Wales (@jimmy_wales) January 15, 2021

FREE MARKETS

Airbnb is back on the upswing after a crash early in the pandemic. Shares are at a record high. During the start of the COVID-19 pandemic, Airbnb’s “business dropped by 80% in a little over eight weeks,” notes Reuters.

However, as lockdowns eased, more travelers opted to book homes instead of hotels, helping Airbnb post a surprise profit for the third quarter. The San Francisco-based firm gained from increased interest in renting homes away from major cities.

The home rental firm went public in a blockbuster initial public offering in December, its shares more than doubling in their stock market debut. Shares of Airbnb rose as much as 10% to record high of $187.42 on Thursday.

QUICK HITS

• “Right-wing figures and websites, including VDARE, the Daily Stormer and Nick Fuentes, received generous donations from a bitcoin account linked to a French cryptocurrency exchange, according to research done by software company Chainalysis.” On December 8, more than $500,000 worth of bitcoin was transferred from the donor account “to 22 different virtual wallets, most of them belonging to prominent right-wing organizations and personalities,” reports Yahoo! News.

• Eric Boehm breaks down President-elect Joe Biden’s COVID-19 proposals.

• Young Americans for Liberty has fired Cliff Maloney from his role as president, amid a wave of allegations of sexual harassment from him and others within the organization.

• Dollar General is offering employees four hours’ worth of pay if they go get vaccinated for COVID-19.

• In a new Economist/YouGov poll, 35 percent of respondents view Missouri Republican Sen. Josh Hawley unfavorably, just 17 percent view him favorably, and many hadn’t heard of him.

• Sen. Amy Klobuchar (D–Minn.) is promising to meddle more with federal antitrust law (conveniently, just as her book on the subject is being released).

• Parler is now trying to force Amazon to host its content.

• Why everyone keeps talking about sea shanties.

• Trump’s bad tech policy ideas are spreading to Poland.

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Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of “some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office,” and courts can reject recall grounds if they don’t adequately allege such misconduct. It’s not like a normally scheduled election, where voters can throw the bums out for any reason they want. But it’s also not like an impeachment process, which is supposed to involve a trial before legislators who decide whether an official’s actions fit within the category of “high crimes and misdemeanors.”

This matter came up in an interesting context in yesterday’s decision in In the Matter of Recall of Fortney (written by Justice Mary Yu):

[Snohomish County Sheriff Adam] Fortney’s first four months in office were beset by multiple controversies….

The petitioners alleged [among other things]: (1) Fortney refused to enforce the governor’s Stay Home – Stay Healthy proclamation, (2) Fortney incited members of the public to violate the Stay Home – Stay Healthy proclamation …. On appeal, Fortney does not challenge the sufficiency of the first charge and agrees to stand for recall on his refusal to enforce the Stay Home – Stay Healthy proclamation….

Washington voters have a constitutional right to recall nonjudicial elected officials who commit acts of malfeasance or misfeasance or violate an oath of office. For the purposes of recall:

(1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;

(a) Additionally, “misfeasance” in office means the performance of a duty in an improper manner; and

(b) Additionally, “malfeasance” in office means the commission of an unlawful act;

(2) “Violation of the oath of office” means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.

The court’s role is solely that of gatekeeper in reviewing recall petitions. As such, we do not review the truth of recall charges. It is the voters who must act as fact finders. Our judicial gatekeeping function ensures public officials are not subject to “frivolous or unsubstantiated charges.” We therefore review petitions simply to determine if they are “legally and factually sufficient.” …

On March 23, 2020, Fortney responded to [Governor Jay Inslee’s] Stay Home – Stay Healthy [COVID-19 shutdown order], utilizing the official Snohomish County Sheriff’s Office Facebook page. He stated in part, “As your elected sheriff, I have no intention of carrying out enforcement for a stay-at-home directive.” On April 21, 2020, Fortney posted a lengthier statement. In that post, Fortney acknowledged the seriousness of COVID-19 but criticized Governor Inslee’s response as unconstitutional:

Snohomish County Residents and Business Owners, ….

I can no longer stay silent as I’m not even sure [Governor Inslee] knows what he is doing or knows what struggles Washingtonian’s [sic] face right now….

As elected leaders I think we should be questioning the Governor when it makes sense to do so. Are pot shops really essential or did he allow them to stay in business because of the government taxes received from them? That seems like a reasonable question. If pot shops are essential, then why aren’t gun shops essential? …

If this Coronavirus is so lethal and we have shut down our roaring economy to save lives, then it should be all or nothing. … [The Governor] is not prepared or ready to make these decisions. If we are going to allow government contractors and pot shops to continue to make a living for their families, then it is time to open up this freedom for other small business owners who are comfortable operating in the current climate. This is the great thing about freedom. If you are worried about getting sick you have the freedom to choose to stay home. If you need to make a living for your family and are comfortable doing so, you should have the freedom to do so.

As I have previously stated, I have not carried out any enforcement for the current … stay-at-home order…. I have received a lot of outreach from concerned members of our community asking if Governor Inslee’s order is a violation of our constitutional rights.

As your Snohomish County Sheriff, yes I believe that preventing business owners to operate their businesses and provide for their families intrudes on our right to life, liberty and the pursuit of happiness….

As your elected Sheriff I will always put your constitutional rights above politics or popular opinion. We have the right to peaceably assemble. We have the right to keep and bear arms. We have the right to attend church service of any denomination. The impacts of COVID 19 no longer warrant the suspension of our constitutional rights.

Along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights. I strongly encourage each of you to reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow our residents, all of them, to return to work if they choose to do so….

This is not a time to blindly follow, this is a time to lead the way.

Fortney’s comments inspired a 79-year-old man to immediately reopen his Snohomish County barbershop in violation of the Stay Home – Stay Healthy proclamation, resulting in several community members lining up for haircuts without wearing masks or social distancing….

Fortney argues that the incitement charge is legally and factually insufficient because his refusal to enforce the law does not constitute inciting others to violate the law. Appellant’s Fortney underestimates both the significance of his words and the power of his office.

Fortney unambiguously proclaimed that the Stay Home – Stay Healthy proclamation was unconstitutional and that the governor’s judgment should be questioned, and he advocated that residents had the right to work. Fortney specifically directed his message to Snohomish “business owners,” declaring that “it is time to open up this freedom [to work]” for “small business owners,” and it was “time to lead the way.”

Fortney insists that he encouraged individuals only to contact their representatives. However, the record indicates he said much more, and Fortney’s words can be reasonably interpreted as an exhortation for people to return to work. Moreover, petitioners provided evidence that Fortney’s words had such an effect on a small business owner who opened the doors of his barbershop to a line of unmasked customers. We agree with the trial court’s determination that a voter could reasonably conclude that Fortney’s specific words “incit[ed] folks to violate the stay-at-home order.”

In combination with Fortney’s statements, Fortney’s express refusal to enforce the law could be interpreted as a catalyst for action. As the sitting sheriff, Fortney is the chief executive officer and conservator of the peace of Snohomish County. He is statutorily obligated to “defend the county against those who … endanger the public peace or safety” and “make complaint of all violations of the criminal law.” Therefore, when Fortney, in his official capacity as “your Snohomish County Sheriff,” stated—repeatedly and publicly—that he would not enforce Governor Inslee’s proclamation and that it infringed on the right to work, he effectively nullified the law. Though Sheriff Fortney is entitled to a great deal of discretion in his enforcement decisions, he is still subject to recall if he uses his discretion in a “manifestly unreasonable manner.” If Fortney leveraged his discretionary power to refuse to enforce the governor’s proclamation with the objective of inciting noncompliance in the midst of a pandemic, the voters may determine that this was a manifestly unreasonable use of discretion….

That reasonable minds may disagree about the interpretation of Fortney’s words is precisely why this charge should proceed to the voters. This court’s gatekeeping is simply to ensure public officials are not subject to “frivolous or unsubstantiated charges,” not to actually assess the truth of those charges…. Voters may reasonably conclude that Fortney abused his discretion by inciting Snohomish County residents to violate the law.

Fortney also argues the incitement charge should be reversed because he did not intend for people to violate the law. He contends that the term “incitement” refers to the accomplice liability statute, requiring the petitioners to prove Fortney had “knowledge” others would commit a crime. We disagree.

The petitioners do not accuse Fortney of engaging in criminal conduct …. As they indicate in their briefing, they merely use “incite” according to its plain, ordinary meaning to “move” people to action. The petitioners accuse Fortney of violating his statutory duties rather than of committing any legal crime, and thus, they were not required to demonstrate intent….

Fortney has not simply expressed “disagreement or criticism” of the law, which he is entitled to do as a matter of free speech. Rather, he stands accused of using a professional Facebook account and the official page of the Snohomish County Sheriff’s Office to leverage his enforcement authority as “your elected Sheriff” to effectively nullify a state law. Fortney does not have the authority as Snohomish County sheriff to determine the constitutionality of laws. That is the role of the courts. Washington law explicitly forbids a sheriff from practicing law. While Fortney may be entitled to his private opinions as a citizen, he is not protected from the scrutiny of the voters when he uses the power of his office to effectuate his own legal conclusions….

{This court recently addressed a recall charge where a sitting city councilman used social media accounts to criticize the State’s COVID-19 response. We concluded that a charge alleging the councilman encouraged citizens to disobey the law was insufficient in part because legislators, unlike those in the executive branch, do not have a duty to enforce public health orders.}

Justice Sheryl Gordon McCloud, joined by Justices Susan Owens and Raquel Montoya-Luis, dissented:

The majority holds that an elected sheriff cannot use his or her executive branch office to “nullify” a law, to enforce his or her own personal opinions about the constitutionality of a law, or to incite countywide disobedience of a law. I agree.

But the majority also recognizes that an elected sheriff can express disagreement with or criticism of a law. I agree with this, also. In addition, as I discuss further below, an elected sheriff possesses discretion about how to enforce the law and may ordinarily choose education or warnings over arrest or citation.

The difficult question in this case is whether Snohomish County Sheriff Adam Fortney’s statements fell into the first, impermissible, category—which would make the petition sufficient to support recall for inciting lawlessness—or into the second, permissible category—which would not.

I part ways with the majority because I cannot agree that Fortney’s public statements show complete “refusal to enforce the law” or countywide incitement to violate the law. Instead, taken as a whole, his statements show that he disagrees with the law, that he encourages people to oppose the law—especially by writing to elected officials—and that he chooses to enforce the law through education rather than arrest. Finally, and most critically for the “incitement” charge, Fortney’s statements also show that he chose to make that enforcement decision public and transparent by posting it on social media….

Fortney stated the following about what he was specifically encouraging others to do:

“Along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights. I strongly encourage each of you to reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow residents, all of them, to return to work if they choose to do so.

“The great thing about Snohomish County government is we have all worked very well together during this crisis. I’m not saying we agree all of the time, I’m saying we have the talent and ability to get this done for Snohomish County! This is not a time to blindly follow, this is a time to lead the way.”

In other words, he was mainly encouraging people to contact their elected officials….

Fortney did not say that he meant residents should “lead the way” by returning to ordinary business in violation of the order. He did say that he meant residents should “lead the way” by voicing their dissatisfaction to their elected officials[:] “I strongly encourage each of you to reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow our residents, all of them, to return to work if they choose to do so.” …

And Fortney said more than just “lead the way.” In context, he also publicly warned that “this virus is very real and sadly, it has taken 97 lives in Snohomish County.” He also publicly stated that the virus “is a very serious issue and the appropriate precautions need to be taken to protect our most vulnerable populations.” …

When one reads the allegations in context, the first charge alleges that Fortney failed to enforce and the second charge alleges that he publicized and promoted his supposed failure to enforce. The petition does not show that Forney manifestly abused his discretion in a manner that incited disobedience of the law. The second allegation is no more and no less than publication of Fortney’s supposed failure to enforce, i.e., the first allegation. I would therefore hold that the incitement recall charge fails.

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So held the Colorado Court of Appeals in In re Marriage of Crouch (opinion by Judge Pawar, joined by Judges J. Jones and Berger):

In Colorado, parents can elect not to vaccinate their children. But what happens when parents divorce and one parent later has a change of heart about vaccinating the children, while the other maintains a religious-based objection to vaccination? …

Mother and father divorced in 2017, and their parenting plan was approved by the court and incorporated into the decree. In relevant part, the plan provides for joint medical decision-making authority and that “[a]bsent joint mutual agreement or court order, the children will not be vaccinated.”

In 2018, however, father had a change of heart about the children remaining unvaccinated. Father said that his position evolved after the parties’ divorce when he researched the issue and concluded that the children should be vaccinated….

[The trial] court credited father’s expert’s testimony, rejected mother’s medical-based objections, and found that the “failure to vaccinate endangers the health of the children.” Recognizing that mother had also asserted a religious-based objection, however, the court went on to find that vaccination would interfere with mother’s “right to exercise religion freely,” and therefore imposed an “additional burden” on father “to prove substantial harm to the children” if they remained unvaccinated. The court ruled that father had not met this additional burden and denied his motion to modify.

The court went on to find, however, that if any of the children are wounded, thereby requiring a tetanus shot; if a disease outbreak occurs in the community preventable by vaccination; or if the children are to travel by air or internationally, such circumstances would constitute “substantial harm warranting a forthwith modification of decision-making.” And because the court found that “air travel and international travel do create substantial harm,” it prohibited the children from air travel or international travel unless they are vaccinated….

[We hold that the] court erred by imposing a heightened burden on father to show substantial harm … when considering his request to modify the allocation of decision-making responsibility between him and mother. Instead, once the court found, with record support, that father met his burden to show that the failure to vaccinate endangers the children’s physical health, and that the risks of vaccination are “extremely low” as compared to its benefits of “preventing severe illness, permanent severe damage, and death,” it should have proceeded to the second prong of the inquiry, namely, whether the harm likely to be caused by changing decision-making responsibility outweighed the benefit to the child

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After watching last week’s otherworldly events—a violent seizure of the U.S. Capitol by pro-Trump mobs who were incited by the president—I was left thinking of a quotation from “1984” and “Animal Farm” author George Orwell: “To see what is in front of one’s nose needs a constant struggle.” That should be the enduring slogan of the Trump era.

We’ve all seen what Donald Trump was about long before he entered politics—and yet large swaths of the Republican Party and public have struggled to reckon with the evidence that was right in front of their noses. You know—his habit of stiffing contractors, bankruptcies, litigiousness, myriad sexual-assault allegations, and abuse of eminent domain.

Even the president’s sycophants have gone on the record in the past attesting to his demagoguery and misshapen character. “I think he’s a kook. I think he’s crazy. I think he’s unfit for office,” said U.S. Sen. Lindsey Graham (R–S.C.) before he decided to avert his eyes. I saw the same dramatic change unfold among many of my conservative allies.

I likened it to “The Invasion of the Body Snatchers,” where extraterrestrials showered Earth with plant pods that grew human replicas. The pod opens and suddenly your wife looks the same, but is now an alien. I used to call a friend who complained about Trump but was softening. “Has the pod opened yet?” I’d ask. He’d laugh, but eventually declared his support for Trump.

It was one thing to jump on the Trump train during the 2016 election before his political approach was entirely clear—and given that his opponent was unlikable Hillary Clinton. After four years of his incessant lies, cruelty, conspiracy-mongering, ad hominem attacks, and various authoritarian musings, one could only not see it by deliberate choice.

Yet the vast majority of Republicans remained devoted to him. Even before 2020 voting had started, Trump claimed voter fraud and refused to commit to accepting the results. When I said, “You know, he might not abide by the election,” Trump supporters insisted that we shouldn’t take his words literally—or that I was suffering from Trump Derangement Syndrome.

People see what they want to see—and many still cling to his baseless allegations (rejected by 59 courts, state election officials and legislatures, and now Congress) that he won a landslide victory. The following seems obvious, even if we must struggle to grasp it: Trump is trying to overturn a democratic election to keep himself in power and instigated mobs in the process.

Perhaps the edifice finally is crumbling. After the Capitol putsch, leading Senate Republicans—including Graham—had enough. They voted overwhelmingly to certify the election. Sadly, many Republicans were silent when Georgia’s Republican secretary of state released that appalling tape of President Tony Soprano muscling him into finding 11,780 votes.

Even the oleaginous Vice President Mike Pence refused to singlehandedly reject the electors, as Trump had pestered him to do. Virtually everyone denounced the violence. Jesus accepted laborers in the vineyard at the first hour and the 11th hour—and paid them all the same. So who am I to criticize these politicians for waiting until the last possible moment to do the right thing?

“I think the president’s conduct today was simply incredible,” said Trump’s longtime ally Chris Christie, the former governor of New Jersey. “As someone who has known him for 20 years, today breached something none of us should have to put up with by anybody who’s given the honor of being an elected leader in this country.”

Those are refreshing words. Yet too many people still are struggling to see what’s been happening. Bitter-end Trump supporters claim that the president has no culpability in the violence that transpired at the Capitol—ignoring the long-held conservative maxim that ideas and words have consequences.

For days, the president had urged his supporters to head to Washington, D.C., on certification day. He spoke to the gathering—and riled them up with incendiary rhetoric. Even after the hordes invaded the Capitol, he released a video that repeated his unfounded election-theft claims and ended with these words: “We love you. You’re very special. Go home.” What an admonition.

After the attack, 138 Republican members of the House of Representatives still supported the president’s challenge to the Pennsylvania electors. The newest Trumpian talking point is to blame left-wing agitators for the attack. “Evidence growing that fascist ANTIFA orchestrated Capitol attack with clever mob control tactics,” tweeted U.S. Rep. Mo Brooks of Alabama.

Brooks isn’t the only lawmaker to make this outrageous claim. Never mind the video evidence of the pro-Trump crowds, with their Confederate insignias, MAGA hats, and Trump flags defiling the building, or of the president’s urging the DC crowd to fight the election results with “strength.” It can be hard to see what’s in front of you—especially when you’re struggling not to see it.

This column was first published in the Orange County Register.

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