In January 2009, days before his inauguration as the 44th president of the United States, President-elect Barack Obama sat down for an interview with ABC’s George Stephanopoulos. Obama was asked directly if his administration would appoint a special prosecutor to investigate George W. Bush administration officials who participated in illegal detentions and torture. Obama said, “I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards.”
Obama was wrong at the time. Many people told him so. Refusing to prosecute Bush administration officials who engaged in human rights violations may have been smart, moderate politics for a deeply divided nation, but allowing torturers and their enablers to blend seamlessly back in with decent society was a moral failure.
The depth of that failure has only grown over time. Many of the legal apparatchiks who made torture possible still wield power today. Take, for instance, Gina Haspel. The current director of the CIA is the former head of a “black site” where torture went down. The fact that she’s allowed to hold power today is an indictment of our country and our commitment to human rights.
Moreover, failing to hold accountable those who abuse their power signals to future abusers that all will be forgiven. It tells people in power that they can commit atrocities while they hold office, because nobody will be coming for them when they’re on the other side. It is important to distinguish crimes against humanity from mere political policy differences, but acting like no distinction can be made is a mistake.
It’s a mistake that Obama’s vice president, Joe Biden, cannot be allowed to repeat.
Unfortunately, even as the current election still rages, with no conclusion expected for weeks (if not longer), some elites are already circling the wagons around the morally bankrupt concept of amnesty for President Trump and his administration. Over the weekend, Harvard professor Jill Lepore published a piece in The Washington Post saying that Trump should not be investigated for crimes should he lose power but, rather, “history” should be his judge. The widely shared article argued against a post–World War II style “truth and reconciliation commission” (as has been proposed by Senator Elizabeth Warren and others) to investigate wrongdoing by the Trump administration.
The core of Lepore’s argument is that functioning democracies have other means of holding the likes of Trump and his enablers to account. Lepore writes, “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.”
The problem is that every single one of the institutions she lists has in some way failed during the Trump administration. Journalists have failed to report on Trump accurately during his first campaign, his administration, and now his reelection run. The judiciary does not function as a reliable check, as both the state and federal systems have been stacked with Trump-aligned justices. “Legislative deliberation” is a joke of a concept in a country that can’t even pass a Covid-19 relief bill. And “dissent itself” has been manhandled and brutalized under this administration, with Attorney General Bill Barr and acting Homeland Security Secretary Chad Wolfe deploying storm troopers into the streets to tear-gas and pepper-spray citizens exercising their right to protest.
Trump has largely defeated these institutions in order to gain and maintain power. There is no rational reason to think they’ll rebound to hold him accountable when he’s out of office, assuming he is even willing to transfer power peacefully.
We need a form of truth and reconciliation commission precisely because our normal institutions have failed. We need to understand how that failure happened, who is responsible, and who should face justice. When a plane falls out of the sky, we don’t just shrug our shoulders and say, “Gravity has consequences.” We send in a team of experts to pick through the wreckage, figure out exactly what went wrong, hold people accountable, and make recommendations for future safety.
We send in experts after disasters not just for vengeance but to make people feel safe again. The “reconciliation” part of a commission is just as important as the “truth” part. We still have to have a society with these Trump people, and that can’t happen until we understand what they’ve done and feel measures have been taken to protect us from them again.
Toward this end, perhaps the main benefit of some kind of commission on accountability is that it would allow the American public to reckon with the abuses and violations committed not just by Trump but also by his many enablers. Barr must be brought to justice for turning tear gas on peaceful protesters so that Trump could take a photograph with a Bible. Former Homeland Security secretary Kirstjen Nielsen must be held accountable for her role in kidnapping children, sending them to concentration camps, and then lying to courts about what she was doing. And every single person who decided to let people die from Covid-19 instead of helping those who live in “blue” states, including presidential son-in-law Jared Kushner, must be investigated and held to some manner of justice for the lives they’ve snuffed out.
All of these moral and ethical failures need to be investigated, and that’s before we get into the actual statutory crimes potentially committed by Trump, his administration, his enablers, and his family. Trump and likely his daughter Ivanka appear to be tax cheats. Senators Richard Burr and Kelly Loeffler appear to have traded on inside information to avoid stock market losses during the pandemic. Rudy Giuliani is in so deep with foreign operatives who are trying to manipulate the election that he comes close to admitting to treason every time he butt-dials Olivia Nuzzi. And let’s not forget that seven former Trump officials or advisors have been criminally charged during the last four years. Does anybody reasonably think that we’ve caught all the actual criminals in this administration?
History will remember Trump, but it will forget about Steve Bannon, Rod Rosenstein, and Stephen Miller. Lepore claims to be arguing that our democracy is strong enough to ignore criminal activity by the Trump administration, but what she’s really saying is that our democracy is too weak to seek equal justice for all. Lepore would let all of these additional criminals off the hook in the name of comity with the Republicans who voted for their boss. This way of thinking incentivizes future Republican assaults on the rule of law by treating the Republican Party as too big to fail.
Her justification for this manifest injustice is this: “But the Trump administration is not Nazi Germany, nor is it a nation defeated in war.”
Tell that to somebody who has lost a loved one from Covid-19. Tell that to some of the 200,000 people still expected to die from the disease between now and the first of the year. Go, lean over their hospital beds as they gasp for oxygen and tell them, “Future historians will judge the people who decided you could die because Trump won’t win Illinois.” Tell that to a woman who has been raped by agents of the American government in one of their immigrant concentration camps. Tell that to a woman who’s had her uterus removed in a procedure she didn’t understand was happening, after being denied counsel or even a translator. Lepore uses a facile Nazi analogy the way my parents told me to eat my vegetables because other kids were starving. But I doubt she’d make that argument to the face of a person who has been on the receiving end of Miller’s ethnic cleansing ideations.
Cruelty is not an acceptable policy outcome from the marketplace of ideas. Treating the Trump administration as a group of good-faith public servants who merely have a political disagreement with their opposition is one of the reasons we arrived in this hellscape in the first place.
The Bush administration tortured people and waged war against foreign nations based on false pretenses. Nothing was done to hold them accountable when they left office. Without fear of retribution, the Trump administration has come along and waged war against our own nation, on the theory that being cruel to brown people and people living in blue states is just a “political” choice.
If we don’t hold the Trump administration accountable, what will the next Republican administration do? Who will be the next group of people Republicans decide it’s OK to kill or let die in the name of electoral politics? Maybe it’ll be the historians. Lepore should check out what the Republicans are trying to do to the 1619 Project before she naively suggests that people will even be allowed to read histories should Republican administrations get their way.
We must hold the perpetrators of Trumpism accountable. Otherwise, we won’t ever be able to move forward. That’s what Obama missed. I hope Biden, should we even be so lucky, doesn’t make the same mistake.