The Religious Ideology Driving the Bundy Brothers

14 May

In January 2016, Cliven Bundy’s sons Ammon and Ryan—acting on what they said was divine inspiration—laid siege to the Malheur Wildlife Refuge, in Harney County, Oregon. Writer James Pogue drove over Mount Hood and arrived on the second full day of the standoff, spending most of the next weeks holed up with the leaders in the building they commandeered as a headquarters. In this excerpt from Chosen Country: A Rebellion in the West (Henry Holt, $28), Pogue meets Ammon for the first time as the eldest Bundy son laid out the little-discussed Mormon philosophy that guides so much of the modern anti-public lands movement.

“Hey, man, I like those boots.” I looked up and saw Ammon Bundy’s bodyguard wearing truck-stop sunglasses, a camo ball cap, a camo jacket, and a little .38 revolver on his hip—the same getup he’d be seen wearing later that night in a clip on The Late Show. This sentence made up the first words spoken in what was to become maybe the oddest friendship of either of our lives. It was just after the morning press conference, four days into the standoff, and we were talking on the snowy access road that led from the gate of the Malheur National Wildlife Refuge down to the cluster of buildings that had been taken over. The morning was gray, but the cloud roof was so high that it was hard to call the weather anything but clear, and you could still see all the way across the Harney Basin. My boots were a cross between western riding boots and traditional work boots, made by Red Wing and slightly too big for me, and I’ve never been able to find a pair to replace them.

“Thanks, man,” I said. I was heading up toward the parking lot to meet a photographer who had just driven in from Portland, Oregon.

“Back home they know me because I shotgun my boots,” the guy said, and indicated the way his jeans were tucked into his own Ariat western-cum-work boots. “I’m a big boot guy.”

I admitted that I held a lot of my net worth in boots, and I told him about my three pairs of Luccheses, and we got to talking about how I’d ended up there as much on a bizarre sightseeing trip as I’d come as a reporter. I mentioned that the previous April I’d been at the Sugar Pine mine—an earlier and, up to this point, even larger standoff with the BLM in Southern Oregon—and that the people who had been there mostly knew and trusted me. He registered something in his eyes. “Hold on, I want to find someone,” he said abruptly. “I’m Wes Kjar, by the way.” He pronounced his last name “Care.” Then he went off down the hill, and I went up to the parking lot and found Shawn Records, the photographer.

We had barely finished hugging and walking over from his silver Tacoma toward a looming tower used as a wildfire lookout when one of the rotating cast of camo-clad militiamen in balaclavas came and said, “Hey, are you James?” I said I was, and he said, “You want to come with me for a minute? I don’t know what it’s about, but I’m supposed to bring you to Ammon.”

He showed us to the small stone office, where Wes was manning the door, past several reporters who had been standing outside hoping for admittance. Wes showed us in, and Ammon rose to greet us. He was wearing the same brown felt cowboy hat and blue plaid shirt jacket he’d wear through the whole standoff, and he was burly and bearded but improbably well-proportioned for his bulk.

He shook our hands, said he’d heard about us, and, without explaining that comment, directed us to take a position at his desk, in the far corner of the room. Shawna Cox, one of Ammon’s father’s first and most fervent followers, was there, sitting alert next to his oldest brother, Ryan, who slouched in a swivel chair with a windbreaker, cowboy hat, and a revolver on his hip. Facing them was a family of ranchers arrayed in a semicircle, ranging from a redheaded little 11-year-old in a Stetson, boots, and a big belt buckle to what appeared to be his mother and father to a gravel-voiced and foulmouthed old man draped over a folding chair and wearing a giant hat. There was a whiteboard in front of them with diagrams and quotes from the Constitution. These were locals, some of the dozens who stopped by every day to talk to Ammon and receive his teachings. He’d wanted us to see the lesson.

It’s hard to explain how surreal and thrilling this was. Everyone at the refuge treated Ammon like a prophet. His name—you could hear it on the radios, you could hear it in the way the more peripheral militia guys enunciated it—was like a passcode. Reporters at the press conferences received his smiles like benedictions, and then bragged over their whiskeys back in town at the Pine Room bar about the solo access they’d gotten. He and his family were already well known to anyone who followed the standoff at the ranch in Nevada, and now the American politico-media complex had made him instantly one of the most famous people in the country, and maybe even, briefly, in the world—a sort of early avatar for all the divisions and insanity of 2016.

Living on the refuge, it was easy to get a heightened sense of his magnetism. He’d summoned us to this tiny office with its ratty gray carpet and cheap swivel chairs and one overused toilet and a little kitchen good only for making coffee, and somehow the setting seemed far more intimate than even a one-on-one interview could have been. He smiled at us and took up a spot at the whiteboard. “So what we were saying,” he said, “is, what’s supposed to happen when two entities have a conflict?”

There was a pause. The boy pushed his hat back and looked ready to say something. His mother nudged him encouragingly. “They’re supposed to work it out themselves?” he said.

“Perfect,” Ammon said, with infectious graciousness. “The Lord said, God said, you’re supposed to love thy neighbor as thyself.”

I’ve heard Ammon give the lecture he was giving that afternoon so many times now that I could probably recite it by rote. He gave it every day on the refuge, to all the ranchers who visited to offer supplication or just to see the thing up close, and it was always astonishing how often even the skeptics came away convinced. One afternoon a guy named Buck Taylor asked for an audience, wanting to persuade him to take the show home. “That rancher is fucking tearing into him in there,” someone told me when I asked what was going on. They talked for a while, and the next time I saw Taylor was at a community meeting an hour away from the refuge in the tiny windswept village of Crane, where he was one of dozens of converts shouting down a guy with the temerity to question Ammon’s vision of the Constitution. “I’m drinking the Kool-Aid,” he told Oregon Public Broadcasting that night. “I haven’t swallowed it, but I’m drinking it.” People brought up Kool-Aid a lot in reference to Ammon.

The effectiveness of the message is due to Ammon’s delivery and to the fact that components of the message have been seeded throughout the rural West for generations. At the beginning of that meeting in Crane, I heard Ammon quiz the crowd: “Who is the final arbiter of the Constitution?”

A lone, timid voice called out: “The Supreme Court?” There was an instant, angry, and honestly slightly disturbing chorus of nos and howls and boos from the assembled ranchers, which, even after years of seeing all this, frankly shocked me—this was damn near the entire adult male population of a strange town Ammon had never visited, where, if you believed the news reports, his ideas had no purchase, and yet these people seemed offended to the point of violence by the idea that the Supreme Court was responsible for interpreting the Constitution. “Right,” Ammon said. “The people interpret it.”

The Bundys are Mormons who believe that the Constitution was inspired, if not more or less dictated wholesale, by God—and that the founding of the United States was the first step toward the restoration of Zion on the continent where most of the Book of Mormon takes place. They’ve taken much of this from W. Cleon Skousen, a fervent Mormon and formative figure of the postwar America extreme-right who believed in a divine America beset by internationalist conspiracies to overthrow the Constitution. The Bundys have identified parts of the Skousenite philosophy and built their own system on top of it—as much a practical guide to living as a political schema, and it’s something they teach as all their own, without citing any influences besides the Constitution and the Bible.

The Constitution, for the Bundys, is an expression of certain natural rights, which are basically our rights to life, liberty, and property, with a heavy emphasis on property. These are supposed to have been implanted by God and so natively obvious that all people sense them intrinsically. Property, for them, is gotten and maintained, in a very frontier way, by your right to “claim, use, and defend” it, as they repeat ad nauseam. It’s a strange irony of the Bundys’ ability to generate media attention that this is maybe the key trio of words in their entire ideology, but that if you Google “claim, use, defend” along with the name “Bundy,” they seem to have not been able to get a single reporter to quote the phrase.

Ideal government, of which the Constitution is a more or less perfect expression, derives from the need to adjudicate between two parties claiming, using, or defending their rights or property when one or more isn’t acting in good faith. Ammon explained this theory of government in a perfect western vernacular.

“So say there’s a conflict some people have, say over a fence. What are they supposed to do?” he asked that afternoon. “I think you’re supposed to talk it out,” the little 11-year-old said.
 Ammon beamed. “Perfect! Did you hear that? The first thing we have is a right to work it out among each other. But let’s say that there’s someone that’s hardheaded or that doesn’t believe in God,” he paused. “Or, I’m not saying that…but I think there’s good people that…”

“They just get crosswised,” the boy’s mother said.

“Yeah,” Ammon said. “Maybe I’m wrong by saying that. But anyway”—he paused thoughtfully—“let’s just move on. So how do you resolve a situation where two people can’t work it out amongst themselves?”

“They go to the court?” the boy said.

Right again, Ammon said. The states, in turn, existed to adjudicate intercounty disputes, and the federal government to deal with interstate. The logical follow-up to this was that if someone felt abused by their county government—rather than a citizen of the county—they could appeal to the state government, and such-wise for state and federal governments. “But now,” he said, “what happens if you have a problem with the feds and you appeal?”

“Lose-lose?” said the mother.

“They go to the feds!” Ammon said. “They go to themselves. You know my dad says that going to federal court is like when a man walks into your house, and he beats up your wife and children. And so you take him to court. And a man walks into the courtroom in a black robe, and they say, ‘All rise for the honorable judge,’ and it’s the very man that beat up your wife and children. The problem is that the federal government doesn’t have the right to own rights,” he said.

“Or land,” Shawna, who was by Ammon’s side almost constantly at the refuge, jumped in to say. “They can’t own land.”

“They do, but it’s very limited,” Ammon said. “And the federal agencies don’t have the right to own rights.”

“What made them think they do?” the mother asked.

“They started it in about the turn of the century,” he said, referring to the creation of the forest reserves and the Forest Service. “There’s a whole history. But people didn’t challenge it at that time.”

“And now it’s expanded,” she said sadly.

“So look at what they’ve done to establish their rights around here. They claimed the land. They put their signs up and their logos on it. They restricted the use of it, saying now we’re going to lease it back to you. And you know dang well that they’re willing to defend it. The nice thing is that knowing all this makes it so easy to see how to fix it. And that’s why we’re here,” he said.

“Welcome,” the mother said.

“And so the solution is,” he said, “we claim our rights, we use our rights, and we defend them.”

Now came the stage where Ammon drew a map of the United States on the whiteboard. He then drew a box representing Washington, D.C., which he invariably located somewhere on the latitude of Connecticut, and quoted selectively from the Constitution to say that the federal government was allowed to own only the “‘ten miles square,’ or actually that’s a hundred square miles because ten by ten,” of Washington, D.C., along with “forts, dockyards, and other needful buildings” that could be built on lands ceded by the state. “The BLM thinks it owns 87 percent of Nevada,” he said. “Is that a fort, dockyard, or other needful building?”

This argument is so compelling in its simplicity that it’s hard to even talk it through with people who have heard it once. Because it seems to say it right there in Article 1, Section 8, Clause 17—that Congress shall have the right:

“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dockyards, and other needful Buildings.”

It’s hard to see how this would allow half the land in the West to fall under federal authority, and you could read this, if it was in your interest to do so, as restricting federal authority to precisely the places listed. But a fair-minded person could also read the intent of the clause as having to do with establishing a national capital and having basically nothing to do with the treatment of public lands thousands of miles away, which is how courts have always seen the matter. There are lots of things the Constitution doesn’t specifically address—including, in this exact clause, the question of how Washington, D.C., ought to be governed, since the exact text suggests that Congress ought to have the same authority over the city as it does over a military dockyard. And the Bundys conveniently never quote the Property Clause of Article 4, which is the article that was actually written to outline the relationship between the various layers of government, and which directly contradicts the whole point:

“The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

The Bundys are great defenders of the idea that anyone with passion and a pocket Constitution ought to be able to interpret the document, and on this question, at least, that seems fair: “Nothing in this Constitution”—and one would have to think that this line applies to the bit that came before about the forts and dockyards as much as it does to anything else—“shall be so construed as to Prejudice any claims of the United States.” The clause specifically articulates the government’s right to regulate territories that have never fallen under the jurisdiction of states, and it specifically says that prior wording in the document, such as what the Bundys cite, shouldn’t be misread to infringe on that right. It’s not exactly complicated.

But in the Bundyite interpretation, the BLM and the Forest Service openly and merrily violated the Constitution in order to trample on westerners’ property rights, which in their schema wasn’t a small-bore range management question out on the fringe of the North American outback, but rather a violation and a mockery of a literally spiritual order of rights laid down in the Constitution, which itself was a mile marker on the road to Zion. The BLM was the family’s particular obsession, but in theory it was sort of incidental—it just seemed to them like the biggest violator. A man named Bert Smith, a Utah outdoor-store magnate who became a close collaborator with Skousen, mainstream Utah politicians, and with many far less well-known range warriors and ranchers, spent his life and a large part of his fortune pushing this general idea—without it ever crossing over to a national discussion. But this is where the family’s odd native political genius came in.

After the election of Barack Obama, so-called Patriot militia groups like the Oath Keepers grew so quickly that they became hard to track or even to define—with the lines between militias and angry, beyond-the-fringe Republicans getting harder and harder to draw. Glenn Beck started promoting Skousenite philosophy on Fox News, and Skousen’s 1981 book outlining his view of America as a heavenly project, The 5,000 Year Leap, quickly became the top seller on Amazon and stayed in the top 15 for all of the fervid summer of 2009. Militias all over the country began calling themselves constitutionalists and seeing the Constitution as a sacred document as much as any Mormon.

For the most part, they were careful to avoid looking like the white supremacist militias of the 1990s, and for all their numbers, they made little noise publicly. But when Cliven and Ammon linked the cause of ranchers and the rural way of life with the Patriot cause, it provided the movement a moral urgency it had lacked before, and also provided a neat trick for cryptoracists and white identity types.

In Britain, it’s very hard to talk about fighting for an “English way of life” without making it clear that some specific sorts of people aren’t welcome in that vision of the country. But the Bundys took a picturesque, iconic version of an American way of life and made the argument that it was the purest representation of the way of life the Constitution, and God, had set down to follow. Patriot groups learned that you could preach cultural nationalism without ever really talking about anything but the Constitution. This trick has filtered up to Republican politicians across the country, which is why Republicans in state legislatures are always trying to ban Sharia law. They aren’t anti-Muslim, of course, they just want to make sure we all follow the Constitution.

This has made it very hard to say who, exactly, in all of this, is a racist. I personally don’t think Ammon is nearly so animated by racial identity as most people on the left would assume—which isn’t to say he doesn’t feed and feed off the same white tribalism that drove the 2016 election. It’s just that he’s so lost in his religious mission that he pretends race is not a motivating factor. But he has given space to genuinely hateful people like Jon Ritzheimer and Blaine Cooper, two of his lieutenants at the refuge, who like to do things like wear “Fuck Islam” T-shirts and make videos of themselves wrapping pages of the Koran in bacon and burning them. And there are some kinds of company you can’t be forgiven for keeping.

The standoff united the ranchers and the Patriots who rallied to them in a family crusade to get more and more ranchers to refuse to pay grazing fees on public land—and eventually, by armed defiance, to break the entire land management system. From there, they envisioned a whole reordering and deregulation of American life and a rawhide-tinted vision of a West where public lands were held as a commons, with an overlapping system of claimed private rights working to let some people hunt, some people graze cattle, some people mine, all while sharing a good-old-days sort of open range.

At least some ranchers had already signed on to the revolution, declining to pay their grazing fees and waiting to see what, if anything, the federal government was going to do about it. Now the Bundys were looking for more. They didn’t advertise that part at the press conferences, but they said it at their workshops with the ranchers. At the meeting in Crane, Buck Taylor, the jowly rancher who’d said he’d been drinking the Kool-Aid, stood up and asked Ammon what would happen if he joined the cause and the feds came to arrest him.

Brian Cavalier, known as Booda, Cliven Bundy’s giant, grizzled, ogre-looking bodyguard, got up. He’d never met any of the Bundys when the standoff at the Nevada ranch popped off—he’d just driven up after leaving behind a job as a tattoo artist and a warrant for a bar fight back in Arizona. He’d ended up staying for two years, and now he was converting to Mormonism. “I was there when they came for Cliven,” he told Taylor. “And if you stand with us, I’m going to be right there on your porch when they come for you, cowboy.”

The Government is Botching Another Bundy Trial

18 Dec

Last week, the judge overseeing the trial of Cliven Bundy, his sons Ammon and Ryan, and a militia leader named Ryan Payne unexpectedly sent the jury home. She had already called a hearing and released the defendants, who up until then had spent almost two years in pretrial detention. Now she called for a sealed hearing to discuss a growing file of previously undisclosed evidence.

This trial focuses on the four so-called “most culpable” leaders of the standoff between federal agents and militias and Bundy loyalists at the family’s Nevada ranch in 2014. It is the latest in a series of trials covering the events in Nevada and the takeover of the Malheur National Wildlife Refuge, which was led by Ammon and Ryan Bundy. The trials had already been proceeding shambolically—marred by delays and a growing collection of seemingly key and exculpatory evidence that prosecutors have failed to turn over to defense lawyers during discovery.

This includes video footage, evidence that an FBI agent had an AR-style rifle near the family home, and FBI “threat assessments,” all of which seem to have the potential to back up a central plank of the defense: that the family brought armed protesters to the ranch in self-defense, because they were surrounded by what they feared was a hostile force of government “snipers.” The situation could “undermine the confidence in the outcome of the trial,” presiding judge Gloria Navarro said. “The court is inclined to find that this information was not timely provided.”

But another piece of potential evidence—a sealed whistleblower report apparently leaked and shared by a Washington state representative—is news of a different order, a report that seems likely to upend the government’s case against the Bundys, and that will probably do more than any event since the shooting death of LaVoy Finicum to add anger and recrimination into the already-fervid conflict over public lands in the West.

I’ve covered the Bundys before, and wrote a forthcoming book about their movement. I hadn’t even had a chance to read the report by the time news of it began flying around the Internet. I got a breathless call from a sometime Bundy supporter who has tried to be a voice of moderation called me. “After all this trying, you know, to be sane and moderate,” he said, “it’s like every bad thing they say about what the government does is true.”

This is overstating it, but if true, the report is damning. It was written by a man named Larry Wooten, who describes himself as the BLM’s lead investigator on the case that led to the failed attempt to round up the family’s cattle, which had been grazing on federal land without permits for 20 years. “The longer the investigation went on,” he writes, “the more extremely unprofessional, familiar, racy, vulgar and bias-filled actions, inappropriate electronic communications I was made aware of, or I personally witnessed. In my opinion, these issues would likely undermine the investigation, cast considerable doubt on the professionalism of our agency, and be possibly used to claim investigator bias/unprofessionalism.”

The details are lurid and slightly funny. Wooten says the investigative team described subjects as “r*tards, r*dnecks, overweight woman with the big jowls, d*uche bags, tractor-face,” among other things. He also accuses Dan Love, the now fired special agent in charge, of sending photos of his feces and “his girl-friend’s vagina,” to subordinates—which is maybe less serious than the fact that Wooten alleges Love operated in a more or less private fiefdom and ignored warnings from state and federal law enforcement to lead “the most intrusive, oppressive, large scale, and militaristic trespass cattle impound possible.”

He alleges a systemic anti-Mormon bias, and that the agency was actively engaged in helping Dan Love to cover up misconduct, which leads to the most relevant and disturbing accusation: that Steven Myhre, the lead prosecutor and acting U.S. Attorney for Nevada, was aware of major issues within the BLM and of substantial evidence that could aid the Bundys’ defense. “Not only did Mr. Myhre in my opinion not want to know or seek out evidence favorable to the accused, he and my supervisor discouraged the reporting of such issues and even likely covered up the misconduct,” he writes.

A later investigation by a supervisor pushed back on Wooten’s claims about evidence being withheld, but the report is nonetheless hard to swallow. The general sweep of it backs up a list of concerns that anyone following these issues could have had since even before the trials began. Love has often been accused of being out of control, being beyond any oversight, and of acting like a bully—and he’s since been fired for demanding free tickets to Burning Man, threatening that “grenades will go off” if he didn’t get his way, and giving away artifacts that were supposed to be evidence in an investigation. The fact that he led the roundup has been a problem for the government’s case since the beginning.

It’s too early to say if Wooten’s report will lead to any specific piece of exculpatory evidence that hadn’t been turned over to the defense, but the problems in that department are already legion: there are reportedly 14 outstanding evidence issues under discussion, and the troubling thing about the whistleblower report is that it alleges intentionality on the part of the government to withhold evidence. Bundy supporters are already prone to conspiratorial thinking. This report will only stoke their fervor.

The disarray and credible allegations of malfeasance aren’t just a product of this trial—they’ve been present since the moment Ammon and Ryan Bundy were arrested in the shootout that killed LaVoy Finicum and led to the end of the Malheur takeover. An independent investigation of that shooting by the Deschutes County Sheriff’s Office found that two shots were fired as Finicum exited his truck—on synced video he can be seen emerging and putting his hands up just as the shots were fired. Finicum then went for a gun in his jacket pocket and was killed as he did so.

The trouble for the government is this: the FBI officer who allegedly fired those earlier shots didn’t disclose them to investigators, and his shell casings disappeared. He was ultimately charged in federal court with lying in an attempt to obstruct justice—an explicit admission that at least one federal agent had engaged in a quite literal cover-up.

Moments like this—and the Wooten report, and countless other instances—and the suspicion they engender have helped to make it difficult to actually convict anyone in the Bundy cases. The government issued 38 indictments in the standoffs at the Bundy ranch and the Malheur National Wildlife Refuge. They included indictments of five members of the Bundy family, a few of close family loyalists and militia leaders who were involved in both events, and dozens of mostly bit players, who up till now are the only participants in either event to face serious penalties.

Thus far, the government’s biggest victory is the conviction of a 53-year-old Phoenix man named Greg Burleson, who was one of the many loners who ended up being “mesmerized,” as his attorney put it, by the Bundys and their peculiar brand of family charisma. Burleson liked to drink, and he liked to brag, and despite being a pretty marginal player in the Nevada drama, he drunkenly incriminated himself to FBI agents who claimed they were producing a documentary for a sham company called Longbow Productions.

“I was hell-bent on killing federal agents that had turned their back on we the people,” he told them at the time. In July, blind and in a wheelchair, Burleson was convicted of assault, threats, obstruction of justice, and gun charges. He got 68 years. “Yes, I said a lot of crazy things. I’m ashamed of them actually,” he said during his sentencing. “Looking back at them, it’s like, ‘Wow, obviously I shouldn’t drink.’”

The other indictments have produced one sensational acquittal—of Ammon and Ryan and five others—a couple of minor convictions, and a smattering of plea deals, resulting in sentences far shorter than Burleson’s, generally for people much more involved in the actual events.

The current trial may be the last chance the government gets to convict the ringleaders of either event. The Bundys and Payne are each facing 15 felonies, including conspiracy, assault, firearms charges, and extortion. The seriousness of the charges—and federally mandated minimum sentences—mean that the Bundys are effectively on trial for their lives, and their response has been to doggedly insist that they were responding to federal threats, intimidation, and bureaucratic overreach. Wooten’s report will bolster the Bundys’ argument that they were the victims of a vindictive campaign of intimidation by Dan Love and the BLM.

This argument has already worked for the Bundys in Oregon, where they were able to argue that they’d shown up to protest what they said were longstanding abuses by the BLM. “Were we threatening to anyone?” Ammon Bundy asked me incredulously, if a bit disingenuously, before his trial. “We were there as peaceful—basically—protestors.” The acquittal set off a storm of anger on Twitter and in op-ed pages, alleging that a particularly naked strain of white privilege had been at work. “Apparently it’s legal in America for heavily armed white terrorists to invade Oregon,” Montel Williams tweeted. “Imagine if some black folk did this.”

This was probably fair, but the outrage obscured the fact that the government had hardly put together a convincing case as to why Ammon Bundy or his followers ought to be facing counts leading to decades in prison. “Do these folks even know what it took to arrive at a verdict on any one of these counts?” one juror later asked The Washington Post. “How could 12 diverse people find such agreement unless there was a colossal failure on the part of the prosecution? Don’t they know that ‘not guilty’ does not mean ‘innocent’?”

As for the current trial, the parties will reconvene on Wednesday. The presiding judge, Gloria Navarro, has suggested the possibility of a mistrial, and lawyers for both Ammon and Cliven Bundy have filed motions to have the case dismissed. The government has been very clear about its zeal to see the Bundys go to prison, on very grave charges. It now seems possible that same zeal has undermined their case.