Argument

Post-Trump America Needs the Courts, Not Truth and Reconciliation

The conditions that demanded healing elsewhere don’t apply in the United States.

President Donald Trump and then-Democratic presidential nominee Joe Biden
President Donald Trump and then-Democratic presidential nominee Joe Biden participate in the final presidential debate at Belmont University in Nashville, Tennessee, on Oct. 22. Justin Sullivan/Getty Images

Hours after Joe Biden was declared the U.S. president-elect, an article was published in the British newspaper the Independent arguing that, as “an act of mercy,” he should issue a presidential pardon for “a corrupt former commander-in-chief”: i.e., outgoing President Donald Trump. It’s a benevolent sentiment—admirable, even, in many ways—but ultimately, this wouldn’t be an act of mercy. It wouldn’t heal the United States, and it might even harm it much further.

Let me state from the outset: The idea of a compassionate, noble leader, triumphant in his victory, pardoning his erstwhile opponent isn’t an ignoble one. On the contrary, if Trump had insulted or harmed Biden personally, then Biden would most certainly be well advised to forgive him. There’s a long precedent for magnanimity, after all, in different political contexts, albeit with different results.

In South Africa, there was the Truth and Reconciliation Commission, following the fall of the apartheid regime. The victims of human rights abuses were invited to give testimony about what had happened to them, and perpetrators could request amnesty. It was, by its nature, outside of the normal legal processes.

In Tunisia, there was the Truth and Dignity Commission, established following the fall of the Zine el-Abidine Ben Ali regime during the Arab Spring uprising era. Again, this was specifically set up outside of normal legal processes, precisely to address the crimes of the Ben Ali era—to turn the page. That meant, as in South Africa, investigating human rights violations and using judicial and nonjudicial mechanisms to address them.

The whole point of these types of processes has been to bring about healing to populations who had undergone a great national trauma, at a time when new political systems were being forged. That language could be used to describe the last four years in the United States, especially the word “trauma.”

But making an analogy to these cases is misplaced. In countries like South Africa and Tunisia, it was a transition to democracy from decidedly nondemocratic systems. In South Africa, this meant minority white rule over a majority black population, and in Tunisia, an autocratic dictatorship. In both cases, they were moving not simply from one leader to another but from one whole system to another.

The systems had been so rotten they could only be overcome by extrajudicial means—in South Africa’s case, an armed struggle, and in Tunisia’s, mass protests that destabilized the regime to the point Ben Ali had to flee the country. South Africans and Tunisians assessed that these were revolutionary acts against systems that had left them with no other choice but to seek extranormal means, and, thus, new systems were going to be built. As a part of that flux, many things were indeed possible, and necessary, to heal and establish a new norm altogether.

But while people may want to throw around words like “revolution” in discussing the victory of the Joe Biden-Kamala Harris campaign over Donald Trump, it isn’t an apt description—at least not in terms of the system. That would be giving Trump far too much credit.

Trump was elected in as much of a democratic election in 2016 as Barack Obama was in 2012, or indeed Biden was in 2020. For all the faults of the American state—and there are many—it isn’t an authoritarian one comparable to Tunisia under Ben Ali, nor to South Africa under apartheid. It wasn’t under Obama, it won’t be under Biden, and it wasn’t under Trump.

This isn’t to say Trump didn’t act like an authoritarian. He did. I’ve studied authoritarian regimes in the Arab world for a decade, and in comparing Trump’s rhetoric to that of many authoritarian leaders in that timeframe, there are startling similarities. Trump was dangerous for American democracy, particularly for its most vulnerable members. But he was hemmed in by that system; he couldn’t simply wave it away, even as president with all the powers that came with that office.

The system continued to work—even as Trump and his acolytes chipped away at it—and that’s why, frankly, Biden and the Democratic Party were able to emerge successful. Their victory doesn’t represent a revolution over the system; it represents the system working, such as it is. Perhaps Trump wanted to be an authoritarian, but the United States isn’t an authoritarian state. (Case in point: If it were, a lot of Trump opponents would be in jail, and I wouldn’t be able to publish this article in a U.S. publication.)

But the corollary of that reality is quite simple. There is simply no justification for pardoning Trump for the numerous crimes he’s likely to be accused of following his—hard-fought—departure from office. There is no healing taking place amid some massive national struggle against apartheid, authoritarianism, or anything like that. As euphoric as so many might feel against the background of the Biden victory, this is a standard occurrence in American politics: An election happened, and the other guy won.

On the contrary, a pardon is likely to be completely counterproductive. Its proponents are likely to promote the idea that it would be sending a message of healing to the nation writ large, but that’s not the message it sends at all. A pardon sends another message, one that’s been all too common in the United States: Accountability for corruption can be avoided if you do it from the top. That doesn’t heal anyone or anything; rather, it furthers, widens, and deepens the corruption itself. The message it sends isn’t one of healing—it’s one that insists you can be rewarded for corruption and not held to account for it. It will be the normalization of corruption, not the healing of wounds.

There is, nevertheless, a way to engage in healing that does involve Donald Trump: He stands trial for any crimes he’s accused of if there’s the evidence for them. At the conclusion of any such trials, if he is found guilty—and that’s a big if—the courts can decide at their discretion, through the normal standards of the law, to grant clemency. But that’s if Trump, just like any other defendant, expresses contrition and remorse. If he does, that will heal a lot of the societal wounds that he has been responsible for, and it would be grounds for clemency, to be sure.

But that would assume Trump is remorseful. And considering his track record thus far since losing the election, when he seems to have invested more energy than any previous American president in sowing doubt in the democratic process, it seems somewhat dubious to consider Trump might be remorseful about anything. Except, of course, that he lost.

H.A. Hellyer is a senior associate fellow at the Royal United Services Institute and the Carnegie Endowment for International Peace. Among other books, he is the author of Muslims of Europe: The ‘Other’ Europeans. Twitter: @hahellyer

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