George Floyd was killed by police in Minneapolis after allegedly using a counterfeit $20 bill at a neighborhood store. Breonna Taylor was killed in her home by police while sleeping in Louisville, Kentucky. Ahmaud Arbery was lynched by a trio of neighborhood vigilantes while jogging in Glynn County, Georgia. In 2020, Americans protesting structural racism and anti-Black violence were tear-gassed, pepper-sprayed, pelted with rubber bullets, misrepresented as threats to the public peace, and subjected to arbitrary arrests in cities across the United States.
Then, on Wednesday, Jan. 6, 2021—a day the world will not soon forget—hundreds of supporters of outgoing President Donald Trump besieged the U.S. Capitol in a serious attempt to overturn the results of the free and fair election of Joe Biden and Kamala Harris as the next president and vice president. After rushing doors, breaking windows, and charging through the halls of Congress, the insurrectionists sat in the Senate president’s seat, put their feet up on the House speaker’s desk, ransacked congressional offices, and defaced statues. The consequences? A remarkably small number of arrests and even some selfies with security officers.
Wednesday’s events reflect a double standard between how law enforcement responds to different groups based on their race. Last year, Black Lives Matter protesters were overwhelmingly peaceful but were subject to ill treatment by the authorities and smeared as rioters and looters. By contrast, some conservative politicians and news media have denied, excused, and even defended the pro-Trump insurrectionists who attempted to seize the citadel of U.S. democracy and managed to walk away from the scene.
Policymakers, academics, and citizens have long decried the discrepancy in the treatment of Black people, and people of color more generally, in comparison to white people in the United States: in policing, employment, housing, health care, and many other areas. This inequality has adverse consequences for democracy. It sharpens social cleavages, normalizes the marginalization of certain groups, and limits the full and equal participation of all people in political, economic, and social life.
The anti-democratic behavior and racism that have defined the Trump era should be addressed through transitional justice: first, so that Americans can develop a shared understanding of their political past and present, and second, so that there can be justice for all.
Over the last few days, U.S. media and political leaders have repeated the refrains “This is not who we are” and “This is not America” again and again. This is not who we are? This is not America? To the contrary: This is in fact and in essence America. But a foundational flaw in the U.S. national project is its citizens’ inability to unite around a common understanding of reality, notably in terms of structural racism and systemic injustice. This divide increasingly falls along partisan lines.
The assault on the Capitol this week shows that it is well past time for the United States to confront its troubling past and present. It is well past time for transitional justice, to address discrimination, violence, and abuses of power by government and nongovernment actors alike. While transitional justice is often applied by governments in new democracies and post-conflict countries, the framework could prove valuable in the United States, which has a long list of unaddressed violence and abuse, generally connected to racism and other systems of oppression.
Transitional justice can help the United States to address two pressing issues simultaneously: anti-democratic behavior and historical and contemporary racism.
Trump and his enablers catalyzed the anti-democratic riot at the Capitol after months of peddling lies about illegal votes, faulty voting machines, and ballot theft and disposal. Ethnic antagonism among many Republicans underlies these attacks. Republicans, who are overwhelmingly white, report being concerned about the growing presence and political power of Americans of color and their demands for a more free, just, and equitable society.
In a national survey conducted in January 2020, political scientist Larry Bartels found that 51 percent of surveyed Republicans believed that the “traditional American way of life is disappearing so fast that we may have to use force to save it,” 47 percent agreed that “strong leaders sometimes have to bend the rules in order to get things done,” and 41 percent agreed that a “time will come when patriotic Americans have to take the law into their own hands.” These figures may be even higher now. Transitional justice could address these beliefs in part by punishing those who have taken the law into their own hands—and deterring those who would do so in the future.
As part of a transitional justice response to anti-democratic actions, elected U.S. officials must dispense with baseless conspiracy theories of election fraud—and those who have encouraged them should be held accountable under the law. When the Democratic-controlled Congress convenes after the inauguration on Jan. 20, it should begin hearings on election disinformation. All federal officeholders who contributed to election disinformation and who incited violence, including Trump and the 147 Republicans who voted to overturn the election, should be served with congressional subpoenas that compel them to testify under oath, at risk of perjury, to the truth: The 2020 election was safe, secure, free, and fair. Their constituents should hear the truth from them directly.
Should subpoenaed individuals fail to comply or lie under oath, the punishment is very simple. They should be indicted and tried for obstructing justice and lying to Congress. Wednesday’s insurrectionists and all who engage in similar illegal and violent acts with the intention to upend democracy should also be arrested, charged, and tried. Otherwise, we will likely see similar assaults on democracy in the coming weeks, months, and years.
Congress should also seek to curtail presidential pardon powers, so that leaders cannot pardon themselves, their relatives, or their close associates. Self-serving pardon powers have become a defining feature of the Trump administration, and many Trump allies are banking on being pardoned for misdeeds carried out in his service.
Second, to confront America’s racist past and present, the country could turn to a truth commission, such as the one sponsored by Rep. Barbara Lee and Sen. Corey Booker, to establish certain basic facts for the nation. Systemic inequality is a defining feature of American democracy, as is white privilege. Both explain disparities in U.S. political, economic, and social life, including how demonstrators are portrayed and treated by law enforcement.
Whether through a truth commission or through another set of congressional hearings, the United States must dispense with whataboutism and the false equivalencies drawn between social movements such as BLM and the rioters at the Capitol. It is essential to clarify that, while BLM promotes racial equality and inclusion, Trump’s “Make America Great Again” movement focuses on white supremacy and exclusion. Last summer’s BLM protests were lawful and motivated by noble goals such as ending police brutality and impunity for perpetrators of racial violence. The pro-Trump insurrection was at its core violent and illegal, and it was motivated by an ignoble goal: undermining democracy and subverting the will of an increasingly diverse people.
The Biden administration and the new session of Congress must quickly counter the attacks on democracy and on marginalized groups that have characterized the Trump presidency. The time for truth and justice is now.
