After the Insurrection: Unpleasant Advice about Trials from a War Crimes Professor

Timothy William Waters is a professor at Indiana University Maurer School of Law, is Associate Director of the Center for Constitutional Democracy and author of Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World.

People sometimes call me for legal advice – a daughter’s DUI, a nephew caught with marijuana. If they need my help, the charges must be serious: I teach war crimes.

There isn’t usually much demand for my particular expertise in the United States. Lately, though, sensible people are worried about civil war. They’re calling for robust accountability for the insurrectionists who stormed the Capitol, and a reckoning for those who supported a reckless, even criminal president.

But studying how societies spiral into violence – and then respond to it – suggests we should temper those instincts. Trials can’t reconcile our divisions or restore our lost unity. But that’s what some are expecting, and it risks turning a bad but manageable situation into the very thing we fear – the thing I study.

A narrative has taken hold that accountability is essential. Speaking about the upcoming trial of Trump, Senator Schumer announced that “healing and unity will only come if there is truth and accountability. And that is what this trial will provide.” Representative Alexandria Ocasio-Cortez declared that “There is no ‘healing’ from this without accountability.”

But there’s little evidence that trials deter conflict or reconcile anyone. In divided societies, trials can exacerbate division. After the First World War, British diplomats predicted that trials in occupied Turkey would send a clear message. They did – creating martyrs for the nationalist cause that drove the British out and entrenched denial of the Armenian massacres in Turkish policy for a century.

In Americans’ increasingly separate realities, trials will act like political barometers. Trials produce legal judgments, not shared truth. Peoples impervious to facts in media will not be impressed by facts in courtrooms. In conflict-riven societies, opinions about judgments tracks identity: In the former Yugoslavia today, surveys about war crimes trials read like an ethnic census. In America, they’ll read Blue and Red.

Trials, like calls for reconciliation and justice, are assertions of power: The losers must recognize our truth. It doesn’t matter that it’s actually the truth: America’s reality-based party didn’t win big enough in November to force consensus about what happened in January, let alone what happens next.

That doesn’t mean no trials; it means limited expectations. We expect courts to uphold the law; we shouldn’t expect them to create political truths. We should try rioters who committed discrete crimes against federal property and persons. If there’s evidence of incitement by congressmen or President Trump, bring charges. But we should resist the temptation to prosecute Trumpism and its enablers. However culpable they are for inflaming false narratives – however galling to let ‘big fish’ go and only prosecute the horned and painted fools who trashed the Capitol – pursuing such claims will only further infect our body politic.

We shouldn’t surrender to unreality, but if we use courts to symbolically criminalize Republican voters, we will accelerate the degradation of our politics. Then we’ll need victory, but we don’t want what will be left after we defeat those who don’t accept reality – the empty houses, the soot-black walls, the bodies swelling the rivers. Assuming we win.

So, have every trial, pursue every avenue of accountability, demand everyone acknowledge truth. That would be just. But as with impeachment, if the goal is reconciliation, expect to fail. As for making things better – well, keep my number handy.

The history of war crimes trials is one of hubris and brutally lowered expectations. We should look to law not for reconciliation, still less for shared truth, but simply for limits to our disagreement. The rest must be done out of court, by all of us. In his seminal work on German guilt, Karl Jaspers distinguished between legal guilt for the few and metaphysical guilt that encompassed everyone – even Nazism’s victims. We must all consider our part in our shared, American predicament.

In time, we’ll need other ways to account for what will become our past: commissions of inquiry, memorials, lessons in school, conversations with neighbors whose yard signs make us uncomfortable. Eventually, pardons and commutations – like President Carter gave the Puerto Rican nationalists who shot five congressmen in 1954 – might do more than incarceration, challenging deep state fantasies with radical forgiveness.

All that takes time, and really, time is all that works. (Even the Nuremberg trials, arguably the most successful war crimes trials, didn’t produce any demonstrable effects on German attitudes for a generation.) Fortunately, we probably have that. Shocking as the insurrection was, it’s a shock we can handle. Wealthy institutionalized democracies can weather endemic terrorist violence. The places that spiral downwards – Yugoslavia, Rwanda, Cambodia, Syria, Nazi Germany – never had robust democratic traditions, or let institutions erode in ways four years of Trump didn’t achieve. Studying war doesn’t encourage a positive view of human nature, but it does teach perspective: Yes, things are very bad now; and no, we are still far from the place we fear. We must act like it.

The truth is, we don’t know why societies descend into brutality. If we are to avoid the fate of nations that failed to arrest their descent, we must choose wisely without knowing where our choices lead. That counsels not for righteousness, but humility.

Because when the day comes that my phone rings for real, it will be too late. There won’t be any good choices left.

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