The start of the January 6 commission is a good time to pause and ask ourselves: What would a reasonable process look like after the attempted coup?
Those of us who are horrified by Donald Trump’s experiment with making himself a dictator should acknowledge that these processes are political trials — we need to be honest. Had the crowd sacked Congress, and held it, what would Trump have done to the Democrats? As a president, he threatened repeatedly to put Nancy Pelosi on trial, and to lock up Hillary Clinton. Had he been kept in power by an insurrection against an election result, he would have a debt to his supporters, and it would be Democrats who would now be on trial.
The difference between democratic leaders and dictators is not whether they put their opponents on trial (it is legitimate to do so in some cases when those opponents have attempted a coup) but how the trials are held — above all, whether they are fair.
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The most celebrated example of a political trial in history is the Nuremberg trials at the end of World War II. In his compendious study of political justice over the last 2,000 years, the distinguished jurist Otto Kirchheimer acknowledged that the tribunal was, in a sense, victor’s justice. The defendants accused of war crimes included high-profile members of Hitler’s regime: Rudolf von Hess, his deputy leader and Julius Streicher, Hitler’s chief antisemitic journalist. No Allied generals or politicians were on trial.
The difference between a political trial and a mere propaganda exercise, as Kirchheimer explained it, was this: In a fair political trial, the judge is prepared to accept the defendant’s story. The judge does not “mortgage” his or her “freedom in advance.” They are calm, they are objective, they listen to the defendant’s case.
In the main Nuremberg trial, three of the 24 accused (Hjalmar Schacht, Franz von Papen and Hans Fritzsche) were acquitted. It was a political trial, but not the quick judicial lynching which would have followed if Hitler had won. The justice shown to the accused was slow and careful. It showed the different standards between democracy and fascism.
In an ordinary political trial, part of the way you establish fairness is by giving the decision-making power to people who are theoretically independent of politics — judges. But of course, in a process such as this, the commission has to be undertaken by political representatives. That significantly limits the ability of Democrats to make this process look fair.
For the far right outlet Breitbart, the fact that people were arrested shows that for the first time in U.S. history, the country has “political prisoners.” (This is, of course, fundamentally inaccurate. Political imprisonment, overwhelmingly targeting leftist organizers, has long been a standard feature of U.S. incarceration.) Taking his cue from the far right, House Minority Leader Kevin McCarthy proposed a slate of Republican members who had voted to overturn the presidential election results. He wanted his candidates to frustrate the commission at every turn. House Speaker Pelosi vetoed that maneuver, but has been left dependent on a narrow band of anti-insurrection Republicans. The pro-Trump Republicans are trying to say that these won’t be fair hearings; the Democrats are trying as hard as they can to prove the opposite.
A fair hearing is not just about the decision reached by judges, it is also about the approach of those people prosecuting the charge. The best-known single piece of reporting on a political trial is Hannah Arendt’s Eichmann in Jerusalem, written after Adolf Eichmann, the Nazi who managed the logistics involved in the mass deportations of Jews to extermination camps, was captured by Israeli agents in 1960 and charged with war crimes.
Arendt treated this as the last of the Nuremberg trials and insisted on the righteousness of Eichmann’s prosecution. She argued that the judge had been scrupulously fair. But her account is critical of the prosecutor who, she insisted, neglected to prove Eichmann’s guilt in his emphasis on defending the politics of Eichmann’s captors. The prosecutor’s opening speech listed for several days the crimes suffered by the Jews over 3,000 years, starting with the Bible and the Egyptian pharaohs. “It is not an individual that is in this book,” he said, “but antisemitism throughout history.”
In other words, the prosecutor neglected his responsibility to use the trial as a way of educating the audience watching in their homes on the injustices that had been committed. This is the approach that should be taken, when it comes to dealing with the events of January 6 in legal terms. The commission is a chance to educate the public about what truly happened and why — a process which is useful for illuminating both the larger forces and specific circumstances that prompted the mob violence at the Capitol.
The likes of the American Conservative insist that there is simply no need either for the commission or for trials: the worst crime committed when the crowd sacked the Capitol was simply “trespass.” The first days of the January 6 commission show how hard Democrats have been working to prove the case that this was something much more sinister.
We can see, in the moves that preceded the launch of the January 6 commission, and in the selection of evidence so far (including the choice of opening with the testimony of police officers — usually subjects of endless Republican goodwill), that both left and right understood how difficult it will be for Democrats to break through the partisanship that accompanied Trump’s two impeachments. Both of those cases saw majority support among blue voters and the rejection of them by most Republicans.
The fact that even after January 6 — after the killings, after all the nooses and zip ties — 55 percent of Trump voters still describe what happened at the Capitol as “defending freedom,” shows how hard the challenge is going to be to break through the partisan cynicism that still protects Trump and his movement. It also shows the grip that an authoritarian leader can maintain over much of the populace, even after exiting the halls of power.