The Washington PostDemocracy Dies in Darkness

Let history, not partisans, prosecute Trump

A truth tribunal is not the answer. Preserving presidential records is.

President Trump walks off stage to cheers from his supporters on Thursday at an airport rally in Greenville, N.C.
President Trump walks off stage to cheers from his supporters on Thursday at an airport rally in Greenville, N.C. (Evan Vucci/AP)

‘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.

Argentina, Chile and El Salvador established the first truth and reconciliation commissions in the 1980s and early 1990s as an alternative to prosecutions, elevating collective storytelling and chronicling over individual culpability. Unlike war crimes trials, such commissions expose the crimes of one’s own government: mass kidnappings, executions and other horrors, including, in South Africa, the many atrocities of apartheid. Influenced by the victims rights movement and the emerging field of trauma studies, the commissions emphasize the importance of giving victims the chance to tell their stories, for the sake of healing and for the sake of establishing a complete historical record. At the convening of South Africa’s Truth and Reconciliation Commission in 1996, its head, Archbishop Desmond Tutu, said, “We are charged to unearth the truth about our dark past, to lay the ghosts of the past so that they will not return to haunt us.”

The reckoning

There are strong arguments for truth and reconciliation commissions in the United States in cases of injustice where the historical record needs assembling and a moral reckoning needs to happen, and where there is no real cost to forfeiting prosecution. Black Lives Matter activists have called for a truth and reconciliation commission to chronicle the long history of racial injustice in the United States, from slavery to segregation to mass incarceration. And last month, Rep. Deb Haaland (D-N.M.) and Sen. Elizabeth Warren (D-Mass.) introduced a bill to establish a Truth and Healing Commission on Indian Boarding School Policy in the United States, to document “the painful and traumatic history of genocide and forced assimilation by the federal government,” according to Haaland, a Laguna Pueblo whose grandparents were among the hundreds of thousands of children taken from their families as part of a federal policy to strip Indigenous peoples of their language, culture and sovereignty.

Wendy Weiser of the Brennan Center warns that the president is doing the work of our foreign adversaries by undermining the legitimacy of the U.S. election. (Video: The Washington Post, Photo: Evan Vucci/AP/The Washington Post)

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.”

Truth and reconciliation commissions do not provide a means for the winners of a democratic election to issue a verdict on the losers. Democracies have all sorts of other institutions that do that: investigative journalism, a functioning judiciary, legislative deliberation and action, and dissent itself. In the United States today, those institutions need fortifying, not bypassing. “A truth commission is not a democratic institution,” as the political philosopher Nir Eisikovits has written. “. . . More often than not, countries undergoing such transitions lack a democratic tradition, have no history of significant public dialogue, and have not secured the minimal economic conditions required for meaningful political participation.” Democracy is in a bad way in the United States, for sure. But even if we need to strengthen them, we still have a free press, freedom of assembly, the freedom of expression, and meaningful and peaceful public dialogue.

How a Biden White House can hold Trump accountable by holding itself back

The most compelling case for truth commissions is that they create a historical record, usually of atrocities that have been covered up and whose paper trail has been shredded. War crimes trials, like impeachment trials, follow the rules of evidence, which means that not all victim testimony is admissible. Truth and reconciliation commissions are not prosecutions, and many are established as a substitute for prosecutions; all evidence is admissible. Tutu’s commission established an amnesty-for-truth rule, for the sake of healing and the historical record.

That archival justification for such a commission is worth pondering. In the aftermath of the Trump administration, whenever it ends, the need for a full and accurate historical record will be especially great. There is every reason to fear that the administration will destroy the evidence of its malfeasance and incompetence, especially its abuses of human rights, its violations of the Constitution and its handling of the coronavirus pandemic. Trump routinely tears up notes, papers and other documents — aides call this his “filing system” — in violation of the Presidential Records Act (historians’ actions against the administration on this score have so far been unsuccessful). He has also ignored warnings from the National Archives and Records Administration as early as 2017. This year, the Department of Homeland Security requested the destruction of “records developed to track and monitor complaints that are or will be investigated by DHS Civil Rights and Civil Liberties regarding alleged violations of civil rights and civil liberties.” The American Historical Association has protested the destruction of these and other records, joining two lawsuits against the administration. Stopping the destruction of records is where the real fight lies. The rest is noise.

If Joe Biden is inaugurated in January, the Justice Department might decide to pursue charges against Trump officials. So might state attorneys general. Biden has said such prosecutions would be a “very unusual thing and probably not very ... good for democracy.” New administrations in failed or failing democracies, places like Argentina and the Philippines, routinely bring criminal charges against opponents, but this has not been the practice in the United States, going back to the rejection of the Alien and Sedition Acts. Biden, emphasizing the independence of the Justice Department, has stated that he would neither question its judgment nor interfere with its actions should it decide to pursue charges. In his recent House Divided speech at Gettysburg, Biden — no Lincoln — said, “We are facing too many crises, we have too much work to do, we have too bright a future to have it shipwrecked on the shoals of anger and hate and division.” In the trade-off between prosecution and stability, Biden chooses stability. Much of the left does not.

Chris Hayes isn’t the only commentator calling for a truth tribunal. “The result should be that we as a country can say, ‘Here’s the truth,’ ” David M. Perry, a scholar of medieval history, told Salon. “ ‘Here’s the evidence that we know. Even though the argument about what it means and what should happen will be bitter, and the divisions in America will not be eased, at least there will be a shared narrative and facts.’ ” This is a fantasy. “To return to something that resembles a functioning and participatory democracy, the country needs a period of internal reflection and public cleansing,” the American historian Kevin Baker wrote in the New Republic two years ago. “Americans must, at some point, decide on which truths we still find self-evident. If anyone has a better suggestion than truth and reconciliation, have at it.” That better suggestion is the ordinary working of justice, the strengthening of democratic institutions and the writing of history, over time, through the study of carefully preserved records.

Many Trump critics will find this suggestion maddeningly insufficient. Given the scale of the administration’s mendacity and cruelty, taking back the White House, if that happens, doesn’t seem like quite enough of a victory. But the appetite for vengeance is a symptom of the same poison. After Watergate, the parties pursued what the political scientist Benjamin Ginsberg has called “politics by other means” — the politics not of elections but of investigations and indictments of members of Congress and other elected officials, including the president. Beginning in 1981 with Ronald Reagan’s presidency, members of Congress have introduced impeachment resolutions against every single president. Democrats brought Supreme Court nominations to the public, in 1987, running television ads against Reagan nominee Robert Bork. Getting rid of a political opponent by these means might work, but it comes at the price of faith in democratic institutions, including elections. Do that kind of thing long enough, and before you know it you get people carrying signs reading “Not My President,” meaning first Obama, and only then Trump. Journalism has become more prosecutorial, too. “Democracy dies in darkness” became The Washington Post’s motto weeks after Trump’s inauguration, but under Obama it was, effectively, the motto of Fox News. “Lock him up” cannot be the answer to “Lock her up.”

What South Africa can teach the U.S. about reparations

In the end, the strongest argument against either criminal trials or a truth tribunal, should Biden win, is that it would let the Democratic Party and every other institution that is not the Republican Party off the hook for driving the nation into a flaming cauldron. The left is keen to blame the right. But what the nation needs, pretty urgently, is self-reflection, not only from Republicans but also from establishment Democrats and progressives and liberals and journalists and educators and activists and social media companies and, honestly, everyone. Does The Washington Post not bear some responsibility for the state of the nation? Or, most of all, Facebook? Or CNN? Or people who spit all over each other on Twitter? Or the guy who shows up for a town hall meeting to talk about a budget line for reseeding the Little League baseball field and calls his opponents morons? No commission can demand that each of us tell the truth about ourselves and reconcile ourselves to one another. Meanwhile, as for people you disagree with, and probably hate, 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.

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