The dominant frame for former President Donald Trump’s effort to overturn the result of the 2020 presidential election tends to be inward-looking and imbued with notions of American exceptionalism. President Joe Biden described the 2022 mid-term elections as “a battle for the soul of th[e] nation” and is employing similar messaging for the 2024 presidential election, while analysts continue to warn that democracy in the United States is under assault in unprecedented ways. Viewed through this frame, Trump and the rise of a bellicose, authoritarian-leaning right-wing populism are a grave and unprecedented challenge to the bedrock norm of peaceful transitions of power. U.S. democracy, to be sure, has long been incomplete and imperfect, with its history of exclusions from the franchise based on wealth, sex, and race (the latter often enforced through state-sanctioned violence). Contested election results are likewise not new to the United States, as the elections of 1876 and 2000 suggest. But the principle of respecting the outcome of elections is being tested and challenged in unprecedented ways, as one major party appears to have internalized a new norm of electoral result contestation.
It is also helpful, however, to view these developments in comparative context. A growing body of legal and social science literature has documented the rising trend of democratic backsliding, defined by political scientist Nancy Bermeo as “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy.” Democratic backsliding in the United States may have distinctive attributes, given pre-existing features of the U.S. constitutional system such as the Electoral College, U.S. Senate, and other structural features that distort representative democracy. But viewed comparatively, the events surrounding the January 6 U.S. Capitol Attack reflect a larger erosion of democratic norms and setbacks to liberal constitutionalism across western countries, as Aziz Huq, Tom Ginsburg, and Mila Versteeg have observed. The experiences of democracies that have come back from the brink (or from full dictatorship) shed light on how the United States could use transitional justice tools to create a shared understanding of anti-democratic events and move forward with accountability, but only if the courts step up and play their respective constitutional role.
Transitional Justice in the Context of Democratic Backsliding
Transitional justice provides a valuable, if underutilized, perspective. Broadly defined, transitional justice describes what Ruti Teitel characterizes a set of “legal responses to confront the wrongdoings of repressive predecessor regimes” and to establish (or reestablish) democratic norms. The term is most commonly used following civil war and the commission of mass atrocities. Well known examples include the re-democratization process in Latin America after the end of military dictatorships in the 1980s and 1990s, Eastern Europe after the fall of communism, prosecutions of former leaders and other officials in the wake of the Balkan wars in mid-1990s, and the Truth and Reconciliation Commission in South Africa after the collapse of apartheid.
Yet, transitional justice has increasingly been applied to a more fluid set of situations, including those without mass violence or regime change. As Eric Posner and Adrian Vermeule have argued, “legal and political transitions lie on a continuum, of which regime transitions are merely an endpoint.” Indeed, the resurgence of white ethno-nationalism in the United States suggests that the country still remains mired in a longstanding process to move beyond racial prejudice and violence that began after the Civil War, notwithstanding the landmark achievements of the Civil Rights Movement.
More significantly, the United States has drawn on a set of legal responses drawn from the transitional justice toolkit, including versions of truth and reconciliation commissions (the House Select Committee investigation of the January 6 attack), lustration (impeachment in Congress and disqualification actions under Section 3 of the Fourteenth Amendment), and accountability through criminal prosecutions (particularly, the election-subversion related indictments against Trump and others).
While such responses are an important part of grappling with the past and protecting democracy moving forward, they also can be limited if not grounded in a wider political and social consensus. (See, for example, Lisa Laplante’s discussion of some limits of technocratic transitional justice mechanisms like truth commissions and trials in Peru; Rachel López’s examination of the need to look beyond prosecutions to address questions of collective memory in Guatemala; Darin Johnson’s analysis of the various mechanisms employed to build support for participatory democracy in Sudan; and Zachary Kaufman’s assessment of political and social responses to the genocide in Rwanda).
Prosecutions and other legal measures aimed at addressing past violence and anti-democratic conduct tend to be more successful when there is some meaningful consensus on what happened in the past and when coupled with larger reforms. In Argentina, for example, the transition to a post-authoritarian state included prosecutions of members of the former regime for human rights violations in the country’s Dirty War (1976-83), but was ultimately part of a larger political project involving multiple actors and sectors of society. After two decades of civil war, Sierra Leone has maintained democratic changes of government and peaceful transitions of power. While criminal prosecutions of those responsible for past war crimes played a role, so did institutional reforms, including the creation of new human rights and anticorruption bodies. South Africa focused on a truth and reconciliation commission process rather than criminal prosecutions, while also employing other mechanisms, including the provision of reparations to victims of human rights abuses under apartheid and reforms of the police and military sectors.
Disqualification Attempts: Is the United States Ready for Transitional Justice?
In contrast to these examples, the United States remains deeply divided over the 2020 election. Recent polls show that nearly one in three Americans believe Biden won the election because of voter fraud. If anything, such divisions have hardened over time. Disinformation and social media, moreover, continue to fuel contestation over the 2020 election and the nature of the threat posed by a second Trump term. Tools like disqualification and prosecution are best viewed against this larger backdrop.
Take, for example, recent attempts across multiple states to disqualify Trump from appearing on the ballot based on Section 3 of the Fourteenth Amendment, which bars any person from holding office who has “engaged in insurrection or rebellion” against the United States or “given aid or comfort to the enemies thereof.” The provision was adopted to prevent former Confederates from returning to power after the Civil War. Disqualification (or lustration) is today a familiar, if controversial, transitional justice mechanism used to purge or bar former officials from holding power again based on their role in a prior authoritarian regime or commission of human rights violations.
Attempts to disqualify Trump raised a series of legal questions, including whether the president constitutes an “officer” within the meaning of section 3, whether Congress must enact legislation for the provision to be enforced, and whether, as a Colorado trial court concluded, Trump had, in fact, engaged in insurrection. But these questions aside, the lack of a framework statute or an established practice of disqualification in the United States fueled fears that kicking Trump off the ballot would increase political polarization and lack legitimacy. For this reason, most commentators predicted that the attempts at disqualification would fail, with the main uncertainty centering on which of the possible off-ramps the Supreme Court would take in rejecting them.
As expected, the Court ultimately ruled that states could not remove Trump from the ballot. Although the ruling was unanimous, the Court divided over the scope of the decision: the majority concluded that the disqualification of candidates for federal office under Section 3 required the enactment of congressional legislation under Section 5 of the Fourteenth Amendment. Four Justices, by contrast, said the majority should have limited its decision to Colorado’s attempted disqualification of Trump and not decide questions it did not need to.
Despite this disagreement, the outcome reflected a shared wariness about using the powerful tool of disqualification in the face of deeply contested views over Trump’s role on January 6 and a stated desire to avoid the “acute” “disruption” that could result from a “patchwork” of state-by-state enforcement of the Section 3 against a presidential candidate. The Court instead reinforced a narrative and process of democratic choice: that the outcome of 2024 election, and by implication the verdict on Trump’s attempt to overturn the 2020 election, would be left to voters, despite a democratically adopted constitutional amendment following a previous insurrection barring insurrectionists from gaining political power.
Criminal Prosecutions within a Transitional Justice Strategy
By contrast, the criminal prosecutions of Trump—and especially the federal and state January 6 cases—suggest how legal responses to past violence can potentially work in conjunction with a political process of reckoning with the past rather than short-circuiting it. Prosecutions are a key feature of transitional justice; they can provide accountability for attempts to subvert democratic rule, resist a culture of impunity, and deter future conduct as part of (re)establishing democratic norms. Such prosecutions, however, tend to be most successful when they form part of a broader strategy that can reinforce collective understandings and memory of the past to assist a society in moving beyond it.
The indictments of Trump have various strengths in achieving these goals. The Manhattan District Attorney’s prosecution of Trump’s alleged hush-money payments to porn star Stormy Daniels—which began on Monday—is the weakest vehicle from this perspective. To be sure, critics of the prosecution tend to overlook how the case captures an effort to unlawfully influence a presidential election by falsifying records and violating federal campaign finance laws. In that respect, the alleged payoff in 2016 can be seen as a prelude to the open insurrection in 2020. But even so, the alleged misconduct itself remains relatively peripheral to the graver threat Trump poses. Some also argue that the Manhattan prosecution suffers from legal shortcomings that, if the prosecution fails, could end up bolstering Trump’s counternarrative of victimhood and martyrdom in a way that bleeds into perceptions of January 6.
The federal classified documents case in the Southern District of Florida and state election interference case in Georgia are better suited to capturing the threat Trump poses to democracy. While the classified documents case does not address the 2020 election, it does involve issues of enormous weight as a national security matter and of public import, while underscoring Trump’s unfailing belief in his own authority and power to disregard all rules and obstruct justice. But the presiding district court judge in the documents trial, Aileen Cannon, has slow-walked the case, and has yet to set a new trial date (after indicating the trial will not begin in May, as previously scheduled). The Georgia case, a sprawling prosecution with nearly 20 co-defendants, has been mired in controversy, including over accusations of misconduct against prosecutor Fani Willis, and will also likely not go forward, much less reach a verdict, before the election.
The federal January 6 prosecution remains the best vehicle for addressing the past and future threat to democracy. Indeed, Trump’s bold invocation of presidential immunity—his lawyer indicated to the D.C. Circuit that a president, unless impeached, could not be prosecuted even for ordering SEAL Team 6 to assassinate a political rival—has helped frame the stakes not only for the 2024 election but for a future president’s ability to disregard the law with impunity. As a unanimous D.C. Circuit panel explained, Trump’s sweeping claims “would collapse our system of separated powers by placing the president beyond the reach of all three branches.”
Polling suggests that a conviction in the federal election interference case would matter to the narrow but critical band of voters who still remain undecided. Although Trump’s base and political enablers will try to tar any trial as a vendetta, a verdict could move the needle with respect to some meaningful portion of the electorate. More broadly, it could provide a brake on the future manipulation of stolen election claims and alter the narrative in a way that helps turn the tide in the slow process of democratic repair.
Risks and Shortfalls
But the January 6 case poses risks. While a majority of the Supreme Court is unlikely to endorse Trump’s claims of presidential immunity, its decision to delay the case could have the same effect. The Court should have refused to hear Trump’s appeal on presidential immunity or at least taken steps to ensure that the January 6 trial go forward expeditiously, as Andrew Weissmann and Ryan Goodman have argued. Instead, the Court granted Trump’s request and scheduled the case for argument on April 25, making any decision unlikely before late June. In one of the best case scenarios, the trial, originally scheduled to begin March 4, would likely not start, at the earliest, until the height of the general election campaign in the Fall; more likely, the trial may get pushed past the election.
The most charitable reading of the Court’s action is that it believed it must weigh in on the legal questions, which are important even if the answers are crystal clear, and needs time to do so. But the delay not only risks upending the prosecution if Trump wins in November and thereby creating de facto immunity for election subversion; it also denies voters the most impartial judgment on the events of January 6 that the legal system is capable of producing when they go to the polls in November.
However one views this transitional moment—whether as the latest clash in an ongoing struggle to guarantee democracy or as the sudden rupture of longstanding norms of respecting electoral outcomes—failing to put Trump on trial before the next election would disregard a valuable legal tool that other countries—ones that have endured far greater violence and turmoil—have successfully utilized in reckoning with the past. As Rachel Kleinfeld has explained in the democratic backsliding context, “where courts have failed to act as an equal, independent branch and have been overly deferential to executives and legislatures, democracies have slipped away.” The United States is not immune from this phenomenon. With Congress failing to hold Trump accountable either in impeachment proceedings or in the wake of the bipartisan January 6 select committee report that aimed to create the shared understanding of the facts Americans need, the role of the courts is even more crucial.