‘New York Times’ Op-ed Sympathetic to Some January 6 Rioters

“The struggle of man against power,” wrote Milan Kundera, “is the struggle of memory against forgetting.” (David Remnick used the quote as the epigraph for his marvelous Lenin’s Tomb.) Kundera, who lived through tumultuous decades in his native Czechoslovakia before moving to France in 1975, knew the inherent perils to free government in allowing events to fade into historical oblivion, whether or not there is a consensus among the people to do so. Consequently, while I admire the humanity that illuminates Linda Kinstler’s New York Times essay from this past weekend, I think the solutions she recommends are a shortcut to chaos and permanent disruption.

Kinstler begins with a sympathetic description of one of the minor defendants in the January 6 insurrection.

Mr. Nester is among the latest in a long string of Jan. 6 insurrectionists who have over the past three and a half years sat for trial in the E. Barrett Prettyman U.S. Courthouse in Washington, D.C. Over the past several months, I have spent countless hours observing these trials: While early and high-profile cases attracted media attention, these days many unfold in nearly empty courtrooms. The corridors are hushed, the opposing attorneys collegial, the judges well acquainted with their routines....Yet for every violent rioter justly tried and punished, there have been many nonviolent offenders summoned to court. A few weeks ago, I watched as a 59-year-old woman stood weeping before a judge as she apologized for participating in the riot and pleaded guilty to two misdemeanors, her first criminal offenses.

Perhaps I’m just less evolved than Kinstler, but these two people got themselves into trouble with their eyes wide open. Mr. Nester walked into the Capitol through a corridor made possible by violent sedition. The woman “participated in the riot,” so she is not a nonviolent offender. In fact, in a purely figurative sense, there were no “nonviolent offenders,” because in one way or another, they took part in, or took advantage of, the worst political violence in the United States since things wrapped up at Appomattox. Kinstler does nod in the direction of the former president*’s insurrectionary activities, writing that there will be no reconciliation until the former president* is held accountable, though she admits that this might never occur. Okay. Fair play to her on that one. But then it all goes off the rails.

In those times of profound division, hatred and ill will, politicians remembered the power of the “act of oblivion,” an ancient, imperfect legal and moral mechanism for bringing an end to episodes of political violence. These acts were invoked when forgiveness was impossible, yet when pragmatism demanded a certain strain of forgetting—a forgetting that instead of erasing unforgivable transgressions, paradoxically memorialized them in the minds of all who had survived their assault. Rather than relying upon the courts to deliver impossible and unattainable forms of reckoning, oblivion provided opportunities for the extralegal recognition of political and moral wrongs, and reminded its subjects of the desire for, and necessity of, coexistence.

Kinstler goes on to cite the amnesty granted to both returning Loyalists after the American Revolution and Confederate soldiers after the Civil War. Leave aside for the moment that the latter example proved to be of ambiguous value at the time and looks even worse in retrospect. The difference between these two examples and the application of “oblivion” in Kinstler’s context is that in both cases, the arrangements were made because a resumption of actual warfare was still a live possibility. In the January 6 cases that Kinstler cites, we are talking about people who made themselves subject to the due processes of law—a distinction that she tacitly admits later on while discussing the utility of acts of oblivion in history.

For centuries, legislative “acts of oblivion” were declared in times when betrayal, war and tyranny had usurped and undermined the very foundations of law; when a household or nation had been torn apart, its citizens pitted against one another; when identifying, investigating, trying and sentencing every single guilty party threatened to redouble the harm, to further fracture already divided societies.

One thing that the ongoing January 6 prosecutions are not is a demonstration that “the very foundations of law” were usurped and undermined. The former president* is a convicted felon. The foundations of the law seem to be holding firm through the January 6 trials. Congress has never passed any laws of oblivion, for which we can all be grateful. However, we’ve become very good at enforcing them de facto. The pardoning of Richard Nixon is a grotesque example. We have memory-holed most of Iran-Contra, the crimes of George H.W. Bush, and the ghastly lies of his warmongering son. This is partly how we ended up with the former president* in the first place. Our universe of oblivion has grown too vast.