Transitional Justice, Anti-Democratic Riots, and Private Responses

Posted in: Human Rights

How should we as a country respond to the current moment? Domestic and international law tell us what is legally permissible, but once those limits are established, we still must decide as a normative matter how to move forward in light of recent events. We believe that transitional justice gives us both a grounding to understand what is happening and a set of tools to assess our options. In this first post, we describe recent events and the range of responses that have been invoked to date. We also raise some preliminary questions about a theoretically underexplored but widely utilized set of responses—namely private actors sanctioning other private actors for their role in the riots. In later posts, we hope to address some of the questions we raise here about the legitimacy and efficacy of private transitional justice.

We begin by describing the most recent event that we believe gives rise to transitional justice concerns. On January 6, rioters stormed Capitol Hill, many of them armed. Their acts once inside ranged from the violent (beating a police officer to death with a fire extinguisher, assaulting police officers, hunting specific Congresspeople to enact violence, attacking members of the media documenting the event) to the profane (smearing feces throughout the Capitol, replacing the American flag with a Trump flag, carrying a Confederate flag, hanging nooses outside the Capitol, destroying the tribute to Rep. John Lewis, stealing Speaker of the House Nancy Pelosi’s lectern). Many captured their misdeeds on selfies and documented the riot on social media suggesting a deep belief in their collective impunity.

Why should such an event give rise to transitional justice when many, perhaps most, acts of violence do not? Well first, by way of brief background, what is transitional justice? It is the process of dealing with characteristically widespread wrongdoing. Transitional justice processes are often formal processes established by governments at the local and national level, such as truth commissions, criminal trials, amnesty provisions, and reparations schemes. Such processes aim not only to achieve accountability for perpetrators, establish the truth about wrongdoing, provide some measure of reparations, and contribute to institutional reform. The need for institutional reform signals the broader transformation in political relationships needed where transitional justice processes are established.

So what makes the events of January 6 ripe for transitional justice in particular? In short, it shares with other transitional justice moments across the globe, wrongdoing that is collective, political, and normalized in settings of political uncertainty. To expand, wrongdoing of interest to transitional justice is collective; it is carried out by groups and characteristically targets groups. The Capitol riots were loosely organized by pro-Trump groups, including militias such as the Proud Boys, motivated by President Trump’s call to protest. One target was members of Congress, with a particular focus on Democratic politicians, during the process of certifying the presidential electoral results. Wrongdoing of interest to transitional justice is also political; it is wrongful action carried out for the sake of advancing political objectives. January 6 riots were clearly political, aiming to obstruct the congressional certification of the electoral victory of President-elect Joseph Biden and, more broadly, to contribute to the effort to have President Trump maintain power in a second presidential term. Finally, wrongdoing of interest to transitional justice is normalized; it becomes a basic fact of life around which targeted groups need to orient their conduct. Violent efforts to disrupt the transition of power from Trump to Biden are not limited to the Capitol attack. The January 6 riot follows an earlier foiled plot to kidnap the governor of Michigan, was concurrent with other attacks on State Capitols, and precedes multiple reported violent plots targeting January 20, Inauguration Day.

We think it helpful to look to transitional justice because it focuses on redressing wrongdoing in a fragile political context characterized by serious uncertainty. Wrongdoing is addressed by processes of criminal trials or truth commissions, for example, in the midst of an effort to consolidate a transition from war or civil conflict to peace or to consolidate a transition from dictatorship to democracy. The present moment in the United States is characterized by uncertainty about whether there will in fact be a peaceful transition of power, or whether violent efforts to interfere with or otherwise undermine the transition of power. The concerns are so significant that the Joint Chiefs of Staff took the unprecedented step of issuing a public letter endorsing a peaceful transition of power. Demonstrably false allegations of voter fraud have gained traction, further undermining the perceived legitimacy of the November elections among Republicans in particular.

In order to think through transitional justice concerns, we must first understand the landscape. What are the forms of redress under consideration and being pursued in the present moment? Commentators are exhaustively exploring the options for governmental accountability for government actors involved the January 6 riot. For President Trump’s role in ceaselessly undermining faith in the election results and seeming to incite violence, some suggest invoking the 25th Amendment which would facilitate removal of the President. Others are moving forward with impeachment in hopes that the Senate would choose to convict the President and also permanently preclude Trump from holding “any office of honor, trust or profit under the United States.” Impeachment proceedings could continue even after President Trump’s term ends and criminal prosecution by the Department of Justice could begin. Others have suggested using the 14th Amendment as a complement or as an alternative to refuse to seat those members of Congress (or a 2024 re-elected Trump) found to have “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof….” Some have called upon state licensing boards to disbar personal Trump Attorney Rudolph Guiliani and Senators Ted Cruz and Josh Hawley for violations of professional ethics rules in “directly incit[ing] the January 6th insurrection, repeating dangerous and unsubstantiated statements regarding the election and abetting the lawless behavior of President Trump,” while others have called for the criminal prosecution of Rep. Lauren Boebert for live-tweeting Sen. Pelosi’s location during the riot and the censure of Rep. Mo Brooks for his remarks at the Save Trump Rally that preceded the riots. Many support an external investigation of the Capitol Police for the failure to adequately prepare for the entirely predictable violence. Congress plans on a probe to determine if any police officers directly supported the insurrection while on duty, with some congresspeople pushing for an additional commission to “investigate the attack and ties between white supremacists and Capitol police.”

For the rioters themselves, a handful have been charged with criminal acts including assault on federal law enforcement, violent and unlawful entry, disorderly conduct, a host of weapons charges, and theft of federal property. More charges and arrests are forthcoming. Other crimes such as felony murder, sedition, and treason have also been discussed along with domestic terrorism charges for those leaving pipe bombs outside the RNC and DNC headquarters as well as others. In addition, the Chairman of the Committee on Homeland Security has asked TSA and FBI to add violent rioters to the no-fly list. Police and fire departments across the country are investigating to determine if their own off-duty officers were involved. At least two Capitol Hill officers have been fired and several more have been suspended or are under investigation.

While government action against government and private participants is to be expected, we note the large number and diversity of private actions as well. Twitter has permanently banned the President from its platform while Facebook, Instagram, and Youtube have banned or suspended him until the end of his term. Multiple third parties such as Morgan Stanley, AT&T, and Dow are also exacting judgment by withholding donations to “lawmakers who voted against the counting of Biden’s electoral votes,” and the Lincoln Project “promis[es] to target companies that donate to any lawmakers who voted against the counting of the electoral votes.” Deutsche Bank has terminated its future financial relationship with Trump, though it stopped short of calling existing loans due. Other commercial enterprises are also severing ties with the President, including the PGA which has stripped Trump of the 2022 PGA championship. At least two universities have revoked honorary degrees awarded to Trump, and NFL coach Bill Belichick refused the Presidential Medal of Freedom. Many urge private sanctions for Cruz and Hawley and some of those who have worked in the Trump administration. Such actions range from the rescission of Hawley’s book contract to the potential reluctance to hire Trump staffers and national security officials to Forbes’ commitment to scrutinize any company that does hire high-level staffers, a standard it says it will apply to liars from either political party. Harvard University removed congresswoman Elise Stefanik from an advisory committee for her unfounded public assertions about voter fraud. And such actions may just be the beginning.

Private actions are also targeting private actors believed to have participated in the riots with a wide range of actions. Online sleuths are identifying rioters to facilitate naming and shaming– such identification often includes sharing the names and social media accounts of alleged participants not just with authorities, but with employers. Several employers have fired or are in the process of investigating those employees alleged to have participated in the riots. Amazon, Apple, and Google pulled cloud hosting and platform access effectively shutting down Parler, a conservative alternative to Facebook where incitement and some planning for the riot occurred. Twitter purged accounts associated with Q-Anon. Airlines can impose their own no-fly lists and have banned some rowdy, non-mask wearing patrons believed to be at the protests. Some individual hosts declined Airbnb reservations for those it believed were coming for Stop the Steal and Inauguration protests and then Airbnb canceled all D.C. reservations for the week of the Inauguration. Some rioters face social exclusion from friends and family.

The actions being taken to hold actors involved in the Capitol riot to account are not without controversy. Objections to invoking the 25th Amendment or pursuing impeachment have been raised. So too have significant concerns been raised about the actions of private actors taken in response to the actions of other private actors. In thinking about the justifiability of different forms of accountability for wrongful conduct, we think it important to distinguish the actors being held to account (public officials or private actors) and the party holding them to account (public officials or private actors). For instance, debates about impeachment focus on public officials holding public officials to account, whereas revocation of a contract is a way for private actors to hold public officials to account. Purging Twitter accounts associated with QAnon or firing employees who participated in riots is a form of private actors holding other private actors to account.

We focus in this entry on efforts by private actors to hold other private actors to account for actions like participating in the riot on the Capitol on January 6. Such efforts are best characterized as private transitional justice, and by characterizing them as such, we can better identify their purposes and assess whether they are successful in achieving them.

From the perspective of transitional justice, the particular character of wrongdoing and the particular context in which it is addressed shape the purposes that responses have. As noted above, whether and how perpetrators are held accountable and victims are recognized and offered redress is taken to matter not only for its own sake, but also because it has ramifications for the broader political trajectory of a community. The purpose of accountability is not simply to hold individuals accountable for their actions, but also, in the present case, to undergird respect for and the sanctity of electoral political processes in a democratic society. Accountability aims to draw a line under conduct that was considered permissible, even encouraged or perpetrated by government officials, in the past and conduct that will be viewed as permissible in the future. More generally, accountability processes seek to ensure that normalized wrongdoing will not recur.

However, in cases of what we are calling ‘private’ transitional justice, the response is by private actors. In looking at the justifications offered for the private actions taken by companies and individuals, we see appeal to transitional justice-type objectives. For example, take Bill Belichick’s statement rejecting the Presidential Medal of Freedom in which he said “Above all, I am an American citizen with great reverence for our nation’s values, freedom and democracy. . . . One of the most rewarding things in my professional career took place in 2020 when, through the great leadership within our team, conversations about social justice, equality and human rights moved to the forefront and became actions. Continuing those efforts while remaining true to the people, team and country I love outweigh the benefits of any individual award.” Or consider American Express’s memo suspending political donations to Republican lawmakers who voted to challenge election results that states “Last week’s attempts by some congressional members to subvert the presidential election results and disrupt the peaceful transition of power do not align” with company values. Similarly, the anonymous creator of @homegrownterrorists who facilitates online identification of rioters publicly explained her purpose as “This was just on such a massive scale that it’s not possible to keep track of all of those people. And so getting those names out there and making sure that they are held to account for the crimes that they committed [is important].” Even if the stated justifications are not the true personal intent of the private actors (which might be driven by public relations and bottom-line concerns) or even if there are multiple reasons these actions are being pursued, the public articulation and justification matters, even more than the personal intent.

Private processes of transitional justice can play an important role in solidifying baseline norms of acceptable conduct among citizens and strengthen respect for political processes. Yet the prominent role of private actors raises a number of important questions as well—this is complicated terrain not to be tread lightly. In the end, in assessing transitional justice as it is presently being pursued, the big questions are whether these processes “work” to move away from violent challenges to our democratic system of government and whether they are legitimate. To be justified, measures ought to be both. An authoritarian crackdown on dissent might work to reduce violence, but would not be a legitimate mode of action. Conversely, legitimate actions like prosecutions might fail to either hold perpetrators to account or quell violence.

First, it is not clear what impact such private actions will have in the medium- to long-term. The effectiveness of private transitional justice efforts might be affected by the presence or absence of effective governmental action and response. Transitional justice efforts by governments employ a range of processes, not all of which are punitive. Punitive actions alone will not achieve institutional reform or prevent the conditions that gave rise to election conspiracy theories and prominent far-right militias. Moreover, too much punishment might reflect an objective neither aspired towards nor seen as attainable in transitional justice contexts: that everyone must be punished.

Other worries about efficacy stem from how private actions are interpreted. If the sanctions being levied are interpreted as punishing speech rather than punishing a violent attack on the democratic process, the consequences could be punishment for speech itself in the future. We as a nation must draw persuasive distinctions between protesting a failure of government officials to live up to their official duties by engaging in abuse and protesting the legitimacy of democratic processes. Otherwise, rights to protest in a manner that will contribute to, rather than undermine, an equal democratic society might become more restricted in the future. If private actors disdain the riots as efforts to maintain white privilege, they must be careful not to adopt tools likely to be used in the future to expand white privilege. Lack of reflection or care on actions being taken or failure to see the need for guidelines might have unintended and pernicious consequences in the future.

Legitimacy questions arise at a basic level because it is not obvious why and when private actors should have the standing to hold other private actors to account for political action. It is clearest to see why this might be appropriate if dealing with a case in which, for example, the state has abdicated its role. Here that is not, or at least not obviously, the case. Private actors do not enjoy the same scope of authority as government actors. It is unclear where the limits of authority of private actors in shoring up political norms and respect for democratic processes lie.

An additional worry about private action is the possibility that the pursuit of accountability turns into vigilante justice. Private actors are not subject to the same kind of public scrutiny and oversight that formal processes of transitional justice are. Lack of regulation could result in disproportionate responses and responses that fail to adequately confirm allegations before consequences are meted out. Finally, as discussions of grudge informers in transitional contexts underscores, private sanctions may facilitate opportunism, where individuals settle scores or sanction actors for reasons unrelated to the pursuit of transitional justice.

None of the above implies that private actions should not be taken. Rather, it suggests the need for developing normative guidelines to shape our evaluation of what form(s) of private sanction, and by whom, likely contribute to the goals of transitional justice and do so in a legitimate manner. As others are helpfully writing about specific issues related to deplatforming or doxxing or shunning and other private actions, we wish to add to the conversation by placing the disparate conversations within the transitional justice frame and developing the insights of this literature in a partially privatized setting.

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