In the early 2000s, Peruvians faced a difficult choice.
Their outgoing president, Alberto Fujimori, had been democratically elected as a
populist only to preside over a regime of corruption, repression, and personal
megalomania. Early in his first term, he orchestrated an autogolpe, or
self-coup, in which he shut down congress and took over the judiciary with the
assistance of the military and Peruvian elites.Though Fujimori nominally restored democratic institutions
soon afterward, he used surveillance, intimidation, and dominance over the media to
neutralize his opposition. It was only after videos surfaced of a Fujimori ally
bribing another official—en route to Fujimori’s victory to an unconstitutional
third term—that protests finally forced the president to call for a new
election and leave office.And so Peruvians had to decide: Would they hold their wannabe-autocratic
former president accountable for his crimes in office—at the risk of angering
his supporters and possibly not securing a conviction? Or would it be best if everyone
just moved on, eyes on the future, not looking backward?They decided to hold him accountable. Fujimori was tried,
convicted of human rights abuses (and later corruption) and sentenced to the
maximum of 25 years in prison. “By prosecuting a former head of state,” the
political scientist Jo-Marie Burt has
written, Peru showed “its citizens that its system of justice is capable of
prosecuting even the most powerful—affirming that most fundamental of
democratic principles, equality before the law.”It shouldn’t be hard to guess why I’m telling this story. At
noon Wednesday, Donald Trump will be finally, ceremoniously ushered out of
office. It will take years to tally his destruction in full: 400,000 dead and
counting from the coronavirus; millions out of work; immigrant families
separated; untold sums of public money diverted to allies and friends; thousands
of civilians droned,
bombed,
or starved
to death overseas. He leaves America’s democratic institutions severely damaged—in
the case of the Capitol, literally.As his term ends, so does the constitutional immunity that
kept Robert Mueller and other prosecutors from seeking indictments against him
for four years. Yet, just as the opportunity arrives to pursue some measure of
justice, the airwaves are filling with pleas to move on. Erstwhile Trump allies
like Lindsey Graham and Marco Rubio are making sanctimonious appeals for
“healing.” James Comey—a man who has said and done quite enough at this point,
thank you!—is arguing that though Trump was “the dictionary definition of a
demagogue,” putting him on trial would only benefit the soon-to-be ex-president.“The country would be better off if we did not give him
the platform that a prosecution would for the next three years,” Comey
told British broadcaster Sky News. “The country needs to find a way to heal
itself, and the new president needs the opportunity to lead and heal us, both
literally and spiritually.”But there can be no healing without responsibility. Just
look at U.S. history. The abandoned attempts to hold Confederates accountable
for the Civil War gave way to the “Lost Cause” myth and a century of Jim Crow. (You
can draw a straight line from that to the appearance of the Confederate flag in
the Capitol on January 6.) Richard Nixon’s escape from justice—by resigning and
securing a pardon from his chosen successor, Gerald Ford—led to Ronald Reagan.
Reagan was never held to account for his role in the Iran-Contra affair. His
top lieutenants were pardoned by his former Vice President George H.W.
Bush, with the help of Bush’s attorney general: Bill Barr.We might have avoided the current crisis if we hadn’t missed a
key opportunity for accountability a decade ago. During the transition from George
W. Bush to the Obama administration, many Americans hoped senior officials
would be held responsible for the lies that got us into the second Iraq War or
the torture and extrajudicial detention at sites like Guantánamo Bay that accompanied
it. Obama refused at the time, saying, “We need to look forward as opposed to
looking backwards.”Because Obama didn’t do so, the cadre of Bush officials who
should have been held to account—including ex-Trump adviser John Bolton and now–Supreme
Court Justice Brett Kavanaugh—were allowed to continue their untrammeled
ascent. Fox News was able to seamlessly offload responsibility for the wars it
had once boosted to Democrats, including Hillary Clinton. Instead of being
praised for his evenhanded bipartisanship in allowing war criminals to go free,
Obama ended up castigated by both the left and the right, setting the stage for
a 2016 election in which Trump could plausibly run as an “insurgent” against
the “Bush-Obama” legacy.The Fujimori case in Peru is an example of what legal
experts call “transitional justice”—a society-wide effort to actively move from
a period of crisis to one of fairness and reconciliation through judicial and
other means. It included the formation of a truth commission
to investigate past crimes—especially those done in the name of a repressive
war on terror against a violent Maoist insurgency known as the Shining Path—and
make recommendations of both criminal cases and structural changes needed to
safeguard Peru’s democracy in the future.Unfortunately, even Peru did not go far enough. As Gisselle
Vila Benites, a researcher at Peru’s Universidad del Pacífico, and Clark
University professor Anthony Bebbington recently argued, the failure to
prosecute secondary officials and security forces who were instrumental in
Fujimori’s criminal activity and to provide redress for the regime’s poor,
rural, and Indigenous victims, have led to recent government tumult in Lima and
put Peruvian democracy in peril once again.The United States, despite our overconfidence in the
inherent strength of our democracy, faces such a crisis now. “I hope people
recognize the absolutely critical moment in which we find ourselves,” Tricia
Olsen, an associate professor in the department of business ethics and legal
studies at the University of Denver who studies transitional justice told The
New Republic. “Democratic institutions work because the rule of law is
applied equally and to everyone.… When wrongdoing occurs, and in particular
wrongdoing that threatens the very institutions on which we rely, there needs
to be accountability.”Transitional justice experts emphasize the need for a
variety of responses to Trump and his enablers’ impunity and their failed attempts
at overthrowing the 2020 election and implementing autocratic rule. A series of
institutional reforms, from pro-democracy initiatives in government, such as
ending gerrymandering and restoring voting rights, to fully investigating
police abuses in the summer’s civil rights actions is necessary. Andrew Reiter,
an expert on transitional justice at Mount Holyoke College, told The New
Republic that both investigating and charging the individual
insurrectionists at the Capitol, and regulating the social media that
radicalized and organized them, will be key steps in mitigating the damage
done so far.While many of Trump’s crimes have been out in the open (we
hardly need a truth commission to read his archived tweets), others need to be
fully investigated. In Peru, the commission investigated not only the crimes
that had occurred under Fujimori’s administration but those of previous
presidents. Here, too, it could be necessary and effective to make
investigations into U.S. government abuses in our own war on terror and
anti-immigrant persecution a bipartisan affair, by opening the conversation up
to the crimes of the Bush and Obama administrations as well—holding even
President-elect Biden responsible for his past actions as vice president.Ultimately, that probably requires the courts. As Olsen and her colleagues’ research indicates, the act of bringing a powerful person to
trial—even if it does not result in a conviction—can have a deterrent effect on
future would-be abusers. Even some Trump-appointed judges have
surprised many with their independence during this election cycle: Giving the
judiciary a chance to safeguard democracy is better than assuming it has already
failed.  The alternative many seem to hope for—to do nothing and hope
that impunity will somehow cure impunity—is suicidal. It will set the stage for
the people who endangered our democracy to do it again, except next time with better
planning and more competent actors.Healing, reconciliation, and avoiding more violence are all
noble and necessary goals. But they can’t be achieved without holding the
guilty accountable. As the head of Peru’s truth commission said: “The necessary
condition for reconciliation is justice.”
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