Processing the Trump era: justice vs. reconciliation?

Colleen Murphy, a specialist in transitional justice efforts, applies that framework to our post-Trump, post-Capitol-insurrection era in How Nations Heal Boston Review 01/21/2021.

A growing chorus of voices, for example, now insists that we hold Trump and members of his administration accountable for pressuring elected officials to change vote tallies, for political corruption, and for his child separation policy at the border. Likewise, calls to invoke the 25th Amendment and impeach Trump followed the mob violence at the Capitol. As so many have pointed out, however, too exclusive a focus on Trump risks treating his administration as an abnormality of U.S. history rather than as a product of conditions that preceded him and that will surely persist when he is no longer in office. Perhaps most familiar among the larger targets of reckoning is the long legacy of racial injustice. As was once again on display last summer, arguably the largest protest movement in U.S. history, Black Lives Matter, has long demanded accountability for police violence and for generations of racial injustice, from slavery to the present day. 

This impetus to dig deep into our past is one we should heed: as a society we need to look back first if we are to be able to move forward. This is not only a matter of political strategy in the quest for a just society. It is also a central insight of the ethical framework known as transitional justice, an overlooked but essential resource in the effort to secure the integrity and legitimacy of American democracy.

With special reference to Colombia, Murphy reviews some major relevant concepts like transitional justice, restorative justice, retributive justice, and truth-and-reconciliation processes. She also has an interesting discussion of psychologist Stanley Cohen's ideas on the various forms of denial of injustice.

With Trump leaving the White House in utter disgrace with an impeachment trial pending and the legal processes against the January 6 Capitol insurrectionists still in the early stages, I'll take the occasion to mention that it's critical for the President and all members of the government be held accountable for obeying the law. I'm not talking about jaywalking tickets or fines for letting their dog poop on the sidewalk, but serious crimes of corruption, miscarriage of justice, kidnapping the children of asylum-seekers, incitement to insurrection.

That means that even Presidents need to be held accountable, and not just by an essentially political process like impeachment and conviction. That doesn't mean that impeachment should be used in trivial partisan ways, but that the Constitution sets it up as a broadly political function of the Congress within the government's defined division of powers, not as a judicial process..

Despite the earnest efforts of the January 6 Republican lynch mob in the Capitol, we have not have had a change of the fundamental national government. We're not starting from scratch with a new Constitution. We haven't just had an actual civil war, even though hardcore Trumpists might like to put it that way. The Justice Department is still capable of conducting independent investigations and prosecutions, as are state attorneys general. The de facto impunity that members of the Executive Branch including the President have too often enjoyed is wrong. And it's destructive to the basic rule of law.

Part of what that means is that however many historians' commissions or special Congressional hearings on the Trump Presidency we may have, prosecution of actual serious crimes is essential. Otherwise, Republican officials will feel even more entitled to flout the law in their official positions.

I stress Republican officials there because the Democratic Obama-Biden Administration took a "look forward, not backwards" position toward crimes of the Cheney-Bush Administration, a policy that surely involved at least a dereliction of duty on the Justice Department's part. What crimes? Those committed in connection with the Iraw War and the deceptions used to justify it ton Congress and the public;, the torture crimes in Afghanistan, Iraq and Guantanamo; and massive corruption. On the later, I'm reminded of a protest song I heard once in the 2000s that included the line, "Halliburton, Halliburton, Halliburton/What else do I have to say?"

In terms of Constitutional issues, I would say this was the worst and most consequential failure of the Obama-Biden Administration. Even though their record on civil liberties was pretty terrible, too..

In that light, this is a particularly interesting observation from Murphy:

What is notable about the Colombian case is that its set of processes for dealing with wrongdoing jointly pursue the central pillars of transitional justice: truth, justice (in the form of accountability), reparations, and institutional reform. Rather than framing the choice between a truth commission and a criminal trial in oppositional terms, the processes are designed to be complementary. Transitional justice theory and practice no longer view the choice societies must face as one between truth and justice but as one that pursues truth and justice in tandem. It is important both to tell the truth—to document the pattern and extent of human rights violations and the conditions that enabled their occurrence, as the Colombian truth commission does—and to achieve justice: to hold perpetrators to some kind of account, as the JEP [the Colombian Special Jurisdiction for Peace] aims to achieve. {my emphasis in bold}

She also suggests that the experience of the Trump years including the storming of the Capitol on January 6 might (or at least should!) discourage the narrowly-nationalistic notion known as American Exceptionalism, another of the Republicans' favorite magical conjuring phrases:

To some extent, the 2020 elections and Trump era have blunted that sense of exceptionalism. Moreover, amidst widespread disagreement about just about everything, few Americans would dispute the claim that our society is characterized by deep, and deepening, political divisions. Our institutional fragility creates precisely the kind of serious existential uncertainty characteristic of transitional contexts.

Yet exceptionalism persists and was on display in many reactions to the storming of the Capitol, which emphasized that “this is not who we are” and characterized the violence as a feature of “banana republics” or the “Third World.” Of a piece with such reactions is a common conflation of our ideals with our practice, which is then used to discredit any proposed critique. To focus on where we have, in fact, done wrong or failed to live up to our ideals as a nation is not to reject those ideals; indeed, very often the ideals themselves provide the basis for explaining our failure. Pointing this out is not to reject our ideals, but rather to reject American acts that do not live up to them. [my emphasis]