Grant Tudor develops and advocates for a range of reforms to shore up our democratic institutions.
Countries emerging from periods of autocratic abuses of power, despite the diversity of their experiences, grapple with a common question: what measures can be taken to fortify against the specter of history repeating itself?
Both the histories of other countries and our own point towards an expansive and complex set of answers: ranging from institutional reforms such as those that rein in executive power and protect an independent judiciary, to robust investments in civil society and civic infrastructure. Among the common approaches to guarding against recurrence is the pursuit of accountability.
While American democracy has been steadily de-consolidating since well before the Trump administration, the severity of transgressions in recent years is qualitatively distinct: including wide-ranging misconduct at the most senior levels of government, some of which may have violated criminal laws; systematic violations of democratic and rule of law norms across government; and the use of government power to inflict grievous harms on specific communities. Taken together, the wrongdoing has functioned as a collective effort — unrivaled in American history — to undermine our representative, democratic form of government.
In light of the recent scope and scale of transgressions perpetrated by public officials, should the U.S. pursue accountability for wrongdoings?
The question suggests a host of others: What do we mean by accountability? Accountability for what, and for whom? Accountability by whom? Accountability by what means? This paper intends to serve as an analytical guide — clarifying the link between accountability and non-recurrence while distilling the various considerations and tradeoffs of different accountability schemes. It relies on research from both international and domestic experience, and benefited from interdisciplinary consultations with experts spanning law, political science, comparative politics, transitional justice, and conflict resolution, among other fields. Rather than prescribe a specific set of approaches, its goal is to equip policymakers, civil society leaders and citizens with a framework for making informed decisions about accountability efforts for Trump-era transgressions.
This paper intends to serve as an analytical guide between accountability and non-recurrence.
Specifically, it interrogates the following:
What do we mean by ‘accountability’? In contrast to a narrow conception of accountability (e.g., only as punishing misconduct), accountability more broadly conceived is a process that: constructs a full record of wrongdoing; pursues deterrence through consequences for wrongdoing; rebuilds prescriptive norms of acceptable political behavior; and generates shared narratives. This broader definition offers an expansive framework for designing accountability schemes in service of non-recurrence.
How would accountability work towards non-recurrence? Accountability efforts can work towards preventing a repeat of past transgressions through a variety of means. These include, for example, setting a constructive precedent for future administrations; rebuilding public trust in the rule of law and public institutions; preventing unaddressed grievances from being exploited to justify future transgressions; and ensuring wrongdoers are not reputationally rehabilitated such that they reenter government and recommit transgressions, or serve as a positive precedent for followers.
What are generalizable risks and limitations? No matter the specific effort, accountability schemes generate common risks and are bound by common limitations. These include, for example, engendering mismanaged and unmet expectations; reinforcing notions among the public of an irredeemably “corrupt Washington”; and deciding some truths are more valid than others. Risks and limitations, while often unavoidable, can be anticipated and managed.
Which kinds of transgressions should be held to account? Not all wrongdoing is the same; and the law may not adequately capture all misconduct that ought to be held to account. For instance, violations of democratic norms may not constitute criminal misconduct — but are also not necessarily less deserving of scrutiny and accountability. Further, different transgressions require different approaches to accountability. For instance, normative violations imply different tools than criminal misconduct. Transgressions should thus be qualitatively distinguished from one another.
Which actors should be held to account? Individuals contribute to transgressions differently. Accountability efforts should distinguish between and respond differently to various types of wrongdoers — i.e., executive decision-makers may direct transgressions, but others are responsible for enabling and implementing those decisions. How best to prevent future wrongdoing by executives may be different than among their enablers. Non-recurrence therefore requires holding different types of actors responsible, and in different ways.
Which instruments are available to generate accountability? There is a wide variety of both formal and informal instruments available to effectuate accountability — ranging from commissions of inquiry and prosecutions to lustration and public apologies. Each has distinct benefits, risks, and limitations, explored here. While these instruments are intended to promote accountability, they can also lay the groundwork towards other efforts that likewise work towards non-recurrence, like institutional reforms.
Who are the appropriate parties to pursue accountability? Just as there is a wide range of mechanisms to effectuate accountability, there is an equally broad set of parties, formal and informal, who can wield these instruments — ranging from law enforcement and victims’ groups to religious figures and private sector entities. Different actors are often better positioned to employ certain accountability tools than others. No one institution or group has a monopoly on the capabilities or responsibilities to pursue accountability.
Who must legitimize an accountability scheme with their support? Popular support for accountability processes — especially in a deeply polarized society — is rarely a reasonable expectation. Nor is it always necessary to make meaningful progress towards non-recurrence. Various accountability measures do not require broad-based support to accomplish their goals, but rather support from very specific constituencies. Legitimacy for accountability efforts should therefore be construed narrowly in terms of support for particular instruments wielded by particular parties.
As referenced above, accountability efforts unavoidably generate an assortment of risks. This paper aims to acknowledge and distill them. It also posits, however, that avoiding questions of accountability carries even steeper risks. Although the below does not offer prescriptive answers to the above questions, it does suggest that bypassing accountability altogether is unlikely to “move the country forward” in a way that effectively protects against future transgressions. Accountability measures, while by themselves insufficient, are a necessary dimension to democratic recovery and reform. The final section of this paper offers eight guiding principles, drawn from the research distilled below, to consider in the design of accountability schemes aimed at preventing a recurrence of transgressions.
Finally, this paper rests on the premise that in liberal democracies, accountability does not only happen at the ballot box. Elections are not the only means by which the public holds its officials to account. A range of formal and informal institutions — from independent law enforcement agencies and legislative oversight to professional associations and media actors — play necessary roles in generating accountability. In a diversity of forms, accountability is a lynchpin of democratic practice. The operative question, then, is not whether a democracy ought to hold its public officials to account, but how to do so in a way that best works towards non-recurrence.
Don’t Be Scared of Prosecuting Trump
The Atlantic, Jan. 14, 2021
Here’s a plan for accountability | Opinion
The Washington Post, December 21, 2020
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