America's Transitional Justice Moment

Jonathan Hafetz

The United States has long witnessed other nations struggle with the dilemmas of transitional justice. In the aftermath of last week’s armed insurrection on the Capitol, and continued threat of political violence by anti-democratic forces, it is now confronting similar dilemmas itself. 

Transitional justice captures an array judicial and non-judicial responses to systematic past abuses, often committed during armed conflict or widespread social unrest. States trying to establish or restore a functioning democratic order must decide how to treat grave rights violations. Should those responsible be criminally prosecuted? Should other measures be employed instead or in addition, such as lustration, where individuals are removed from government office. In deciding these questions, states must evaluate tradeoffs between peace and justice. Often, the two are considered mutually exclusive. Yet, the reality is more complex, a continuum where the two are sometimes in tension, other times reinforcing, rather than polar opposites.

The U.S. now finds itself in the crosshairs of a transitional justice moment. Last week’s armed attack on the Capitol was a direct and violent assault on the democratic process. An armed mob sought to halt the formal counting of electoral votes in Congress and derail the peaceful transition of power—all with the encouragement and support of the President. Each day, as more is learned about the degree of planning, level of violence, and acquiescence (if not outright cooperation) by some government officials, the attack appears an even graver threat.  

President-elect Biden ran and won on a promise to heal America. The envisaged healing is twofold: a political healing that reunites a deeply polarized electorate; and a physical healing that brings the most deadly pandemic in a century under control and revives a battered economy. But last week’s attack alters the landscape. Simply looking forward is unacceptable—it will provide neither peace nor justice. The threat posed by Trump and his violent supporters and enablers is too grave and the conduct too outrageous. Healing and restoration require accountability.

The House is moving forward with impeachment, as it should—not simply to vindicate the principle that a president should never be permitted to subvert the democratic process and foment insurrection, but also to prevent Trump from seeking federal office again. Even if Trump would likely lose in 2024, he should be denied the opportunity to run again, where he would surely seek to exploit an already deeply frayed social fabric with his lies and coded calls to violence. Here, peace and justice are fully aligned.

Insights from transitional also inform the course of an impeachment proceeding. A trial in Senate, as I’ve argued, should not be a drawn-out affair but conducted expeditiously. Trump’s statements on their face justify impeachment (which does not require proof a federal crime, nor the robust procedural safeguards of a criminal trial)—statements that include refusing beforehand to commit to a peaceful transition of power; then systematically seeking to invalidate the results of a free and fair election; and finally, not only encouraging a mob to overturn the election, but refusing to condemn the violence afterwards (which Trump still persists in doing). On these issues, no facts are in dispute and no witnesses are needed; the proceeding could be confined to written submissions and a brief oral argument to address any legal questions. The Senate need not provide Trump or his supporters with a platform to propagate more lies and foment more violence. Indeed, denying them this opportunity is especially important given the Biden administration’s need to focus on the pandemic, that has now claimed nearly 400,000 lives in the United States, and which Trump gravely exacerbated through his gross negligence (if not deliberate actions). Again, peace and justice are aligned.

A transitional justice framework likewise supports a criminal investigation of Trump not only for the events of January 6 but also for other election-related offenses, including state and federal election tampering charges arising from his efforts to threaten Georgia Secretary of State to “find” the necessary votes. It supports internal investigations by all agencies responsible for protecting the Capitol to determine whether their employees directly or indirectly supported the attacks, and, if so, to immediately remove them. It supports other available means, including potentially legislation enacted under section 3 of the Fourteenth Amendment, to disqualify individuals who incited or participated in the insurrection, and thus violated their oath to support the Constitution, from holding office. (Notably, this amendment was enacted in the most significant transitional justice period in U.S. history--the aftermath of the Civil War). And it supports a 9/11-style bipartisan commission to investigate not only what went wrong on January 6 from a security perspective, but also the degree to which public officials allowed it to happen, whether because they misunderstood, ignored, or sympathized with the threat posed by right-wing extremists. 

The events of January 6 have punctured any remaining notions of American exceptionalism—the idea that America is somehow unique and that democracy in America is somehow impermeable. American exceptionalism, however, has always been more myth than reality. Numerous data points even in recent U.S. history, from the country’s denial of civil and political rights to black Americans to its embrace of torture after 9/11, undermine any notion of America as that shining city on a hill. But even so, an armed insurrection by American citizens on the Capitol to thwart a peaceful transition of power—which the President and numerous lawmakers encouraged and then failed to condemn—puts the country at a new and perilous crossroads. America is not so exceptional that it cannot benefit from the framework of transitional justice, like so many other nations, in responding to the challenge.