Colleen Murphy is the Roger and Stephany Joslin Professor of Law at Illinois and an expert in political reconciliation. Murphy, also a professor of philosophy and political science, spoke with News Bureau business and law editor Phil Ciciora about transitional justice and the end of the Trump presidency.
What is transitional justice and does the U.S. need to pursue it in the aftermath of the Trump administration?
Transitional justice is concerned with accounting for wrongdoing, both past and present, in order to transform relationships among citizens and between citizens and government. It’s a pursuit of justice not only for the sake of redressing victims and achieving some measure of accountability for perpetrators, but also with an eye toward fundamentally changing how citizens and officials relate moving forward.
And yes, we need to pursue it after President Trump’s term ends. The objection that’s often raised is the U.S. isn’t post-apartheid South Africa or post-Nazi Germany. We’re the world’s oldest democracy. But that objection is misguided. The conditions that generate the need to pursue transitional justice are present in the U.S. in the form of, for example, structural economic inequality such as the racial wealth gap, or the way in which race is influencing who is suffering from unemployment and even death due to COVID-19.
What’s especially apt for this particular moment is what I call serious existential uncertainty, when it becomes deeply unclear where a community is heading. The uncertainty surrounding the election – both in Trump’s refusal to concede and in the rhetoric and unfounded allegations calling into question its integrity – has generated questions and concerns in a lot of people’s minds about whether there will be a peaceful transition of power.
These are all hallmarks of transitional societies where transitional justice is pursued, which just further underscores why we need it in the U.S.
Do we need a truth and reconciliation commission to examine the Trump era?
You can address past wrongs with the end goal of trying to fundamentally change political relationships through a variety of processes, and truth commissions are one of the options. Truth commissions are official bodies that are established, typically by government officials, with a particular mandate to look at a specific kind of wrongdoing that occurred over a particular period, and write up a report about what happened – who were the victims, who was implicated, how did it become possible. So that’s one option, but there are others. You can have reparations programs; you can have criminal trials; you can have amnesty that removes the possibility of civil or criminal liability. So there are really a number of different ways to pursue transitional justice.
But ultimately I think that President-elect Biden ought to set up a commission on transitional justice that’s charged with trying to identify the scope of the commission’s inquiry: What wrongs should be addressed, and what kind of process is best suited for those wrongs? Should the commission focus on wrongdoing specific to the Trump administration, such as the child-separation immigration policy or corruption? Or should it take a broader lens on, for example, racial injustice and the intergenerational consequences of Jim Crow and slavery? Certainly, a truth commission would be an option that immediately comes to mind, but it’s not the only thing that could be done.
How realistic – and how essential – would bipartisan support be for this endeavor?
Transitional justice is always highly political, and in part that’s because it involves holding government officials to account for actions that they were responsible for or authorized. And there’s just no getting around that that form of accountability will be seen as objectionable to members of the political community from which those officials come from, or the community that they represent.
The key challenge in pursuing transitional justice is being able to distinguish processes of transitional justice from victor’s justice or vengeance, or a mere political vendetta. Such distinctions are influenced by whether transitional justice becomes the subject of bipartisan support. Also important is ensuring the inclusion of Black, Indigenous and people of color and women in decision-making about transitional justice and the operation of transitional justice processes. A final challenge is structuring processes in a way that is genuinely oriented toward the pursuit of truth and justice.
In his first formal address, Biden called for unity and healing. Does pursuing transitional justice interfere with those goals?
Biden should still try to thread that needle between unity, healing and accountability. You won’t get healing without a commission of inquiry, period. The president-elect was very clear throughout his campaign that he wants unity, and he’s committed to overcoming divisions as they exist in the U.S., and I think there’s a shared desire for that. The question is how to actually achieve it.
The American impetus has always been, in the face of division or in the aftermath of ugly episodes in our history, to only look forward, not backward. Clearly, that hasn’t served us well. Transitional justice is based on the idea that you must look back in order to then be able to move forward, and that we won’t actually be able to heal unless we first understand and acknowledge why those divisions are present.
Real unity requires us to dig into the ugliness of our present and past. Refusing to acknowledge or discuss unpleasant facts or wrongs doesn’t make them disappear. Instead, they fester, and you get resentment that grows and a refusal to acknowledge wrongdoing. And this can wrong victims a second time and embolden abusers or perpetrators.
Are there any recent historical examples of the U.S. grappling with its past transgressions?
There are a few, but they’re mostly at the state level. There is the Maryland Lynching Truth and Reconciliation Commission, whose work is ongoing. There is also the National Memorial for Peace and Justice as well as the Legacy Museum in Montgomery, Alabama, which were established two years ago as a memorial to lynching victims and offer a history of slavery in the U.S.
Otherwise, we don’t have many past examples of successful, comprehensive national efforts to deal with our past. The examples we should draw from are more international and global, occurring in countries that have faced the aftermath of genocide, civil war or the toppling of a dictatorship, and have really attempted to grapple with the past as a way of establishing a more united and stable future.