Let History, Not Partisans, Prosecute TrumpRoundup
tags: Donald Trump, Presidential Records
Jill Lepore is the David Woods Kemper Professor of American History at Harvard, a staff writer at The New Yorker and the author of These Truths: A History of the United States. Her latest book is If Then: How the Simulmatics Corporation Invented the Future.
‘The most humane and reasonable way to deal with all these people, if we survive this, is some kind of truth and reconciliation commission,” MSNBC’s Chris Hayes tweeted this month, about anti-maskers in the Trump administration. Days later, NPR ran a story about the possibility of a post-Trump truth and reconciliation commission. This is a terrible idea.
In democracies, a peaceful transfer of power has two elements: The loser concedes without violence, and the winner accepts without vengeance. The first peaceful transfer of power in American history took place in 1801, when the Republican, Thomas Jefferson, having defeated the Federalist, John Adams, said in his inaugural address, “If there be any among us who would wish to dissolve this union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.” This tradition might be dying, but it needs reviving, not burying.
Truth and reconciliation commissions have their origins in the post-World War II idea that formal legal responses to mass atrocities, beginning with war crimes trials, not only mete out justice but also prevent further violence, in the form of assassinations and other kinds of retribution. In 1945, Supreme Court Justice Robert Jackson served as chief counsel for the United States at the trials of Nazis at Nuremberg, conducted jointly by the United States, France, Britain and the Soviet Union. “The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated,” Jackson said as he opened the prosecution. “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”
Surely, post-Trump, when that day comes, there will be investigations. A bipartisan, 9/11-style commission to study the federal government’s response to the pandemic seems not only likely but essential. And Harvard Law School’s Mark Tushnet has argued for a non-prosecutorial, fact-finding “commission of inquiry” to investigate possible abuses of power by the Trump-era Justice Department. But the Trump administration is not Nazi Germany, nor is it a nation defeated in war. Its wrongdoing — a litany that includes corruption, fomenting insurrection, separating parents and children at the border, and violently suppressing political dissent — should be investigated by journalists, chronicled by historians and, in some instances, tried in ordinary courts.
None of the conditions of a truth and reconciliation commission apply to Trump’s four years in the White House. Coming to terms with centuries of dispossession, enslavement and racial violence is a very different matter from reckoning with four years of a democratically elected president who, even if he loses, will probably have been the choice of 2 out of 5 American voters. Because a fair election is itself a verdict on an administration, truth and reconciliation commissions do not take place after democratic elections — they take place during transitions from authoritarianism to democratic rule, which is why this kind of proceeding is usually called “transitional justice.”
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