OpinionGuest Essay
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By Linda Kinstler
Dr. Kinstler writes frequently about the politics of memory.
On March 4, Judge Tanya Chutkan presided over jury selection for a criminal trial in a Jan. 6, 2021, case. That date had long been scheduled, though there was a different defendant seated before her than had been planned: In the place of former President Donald Trump sat a 57-year-old Pennsylvania man named Lynnwood Nester.
On Jan. 6, 2021, Mr. Nester had traveled to Washington with a group of fellow insurrectionists to attend the former president’s rally at the Ellipse, then walked, carrying a cane, toward the Capitol, where the group stopped to pose for photographs. He then proceeded inside through an opened door, wandered around the building for 10 minutes and left. He caused no damage and took nothing with him.
On his first day in court, Mr. Nester sat next to his attorney wearing a collared shirt and a tie, his glasses perched atop his gray hair. He glumly surveyed the potential jurors seated in the benches behind him, 12 of whom would later that week determine his fate. Mr. Trump, whose criminal trial has been put on hold pending Supreme Court review, spent that week on the campaign trail.
Mr. Nester is the 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.
Some of the trials have delivered long-delayed justice: The week before Mr. Nester appeared, a Kentuckian named Michael Sparks — the very first rioter to have broken into the Capitol building on Jan. 6 — was found guilty of all six charges. Members of the Oath Keepers and the Proud Boys have been sentenced to significant prison terms.
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.
Nearly every week, several more rioters are sentenced for their roles in the insurrection and the F.B.I. makes a new spate of arrests. Well over a thousand participants in the events of Jan. 6 have been arrested and charged. Many have already completed prison sentences, paid restitution and returned to normal life.
I have observed one rioter after another being tried and sentenced, and watched as footage of that day is played and replayed for one jury after the next, and as the same witnesses are summoned to recount the same events. Some defendants seem to recognize the harm of their actions; others are stubbornly unrepentant. I have heard defense attorneys argue that their clients were there because they believed they needed to protect the Constitution, because their president told them to be there, because their friends asked them to tag along. In court, the defendants have been likened to British troops during the Revolutionary War; in the media, they have been compared (by their own invitation, given some of the flags they carried into the Capitol) with Confederate rebels during the Civil War.
Each case is part of the ongoing national effort to establish what occurred that day and to hold the perpetrators responsible, a process that will remain unfinished until those who were chiefly responsible for the riot — Mr. Trump and his closest accomplices — are held accountable for so nearly bringing American democracy to its knees.
The coming Supreme Court ruling in Fischer v. United States, which could strike down the convictions of more than 300 Capitol rioters for obstructing an official proceeding, is evidence that our nation is still sorting out how to think about what happened that day and how the judicial system ought to exercise its powers of punishment and mercy to ensure that the union heals. Another forthcoming decision from the court, on whether or not Mr. Trump is immune from criminal prosecution for official conduct undertaken as president, could create further obstacles to his already delayed Jan. 6 trial. This will keep the issue alive in our fractured public life.
Jan. 6 exacerbated an already accelerating cycle of political vengeance and recrimination, one that Mr. Trump has repeatedly vowed to continue if he is re-elected. His recent conviction in New York appears to have only strengthened his commitment to pursuing political retribution.
President Biden has urged Americans to reject the former president’s vendettas, to look to the future instead of the past. “We look in the mirror and ultimately never pretend we’re something we’re not,” he said in a speech marking this year’s anniversary of the attack, adding: “We speak of possibilities, not carnage. We’re not weighed down by grievances. We don’t foster fear. We don’t walk around as victims.” He was inviting voters to imagine a future in which Jan. 6 no longer weighs so heavily upon the public mind, a future in which the nation has fully reckoned with what occurred that day and who was responsible, and where we can finally move on.
That future will not and should not arrive before Mr. Trump himself goes to trial for his role in the insurrection, and possibly for some years after that. And there remains the distinct possibility that he may, in fact, never face real accountability.
But at some point — perhaps after all the Jan. 6 trials end, perhaps after a plaque honoring all those whose actions allowed Congress to resume functioning that day is at last erected — the kind of reorientation that Mr. Biden has called for, the rejection of vengeance and the embrace of the future, must come to pass. We have a duty to consider what it might take to bring it about and to envision a form of politics that is not premised upon seemingly endless recrimination.
This is not the first time our nation has survived a profound internal rupture, but it may be the first time in which the political ringleaders of the revolt may very well escape much accountability while hundreds of their followers serve jail time. In previous times of national crisis, the same spirit of mercy that Mr. Biden conjured generally applied to lower-level offenders, while those who had committed the worst crimes were the first to be arrested and tried for their treasonous acts.
Bernadette Meyler, a Stanford legal historian, has shown that after the Revolutionary War, the Continental Congress passed a resolution recommending that states treat loyalists with leniency, “to receive such returning penitents with compassion and mercy, and to forgive and bury in oblivion their past failings and transgressions.” Punishments for loyalists were, according to the scholar Mugambi Jouet, “particularly mild” for the era. After the Civil War, a series of amnesties were passed, eventually encompassing almost all Confederate soldiers.
In the aftermath of these crises, the impulse to bury past wrongs won out over the desire to avenge. There were moral as well as practical reasons for this: The complicit were so great in number that identifying and trying every one of them would come at significant cost, but more important, no law could sufficiently condemn what they had done, and no criminal procedure could adequately consecrate the memory of their wrongs.
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.
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. As a legal mechanism, oblivion promised the return to a past that still had a future, in which the battles of old would not predetermine those still to come. It did not always achieve its lofty aspirations, nor was it appropriate for all conflicts. But the ideals it grasped for had an enduring appeal.
Under the oblivions of old, the ringleaders of riots, insurrections and tyrannical reigns were prosecuted for their crimes and in many cases were forced out of the cities and states they had once claimed to rule. Treasonous leaders were prohibited from holding public office. Oblivion demanded accountability for those who bore primary responsibility for political rupture and often required material compensation and restitution for the harms done. It also had an important memorial function, consecrating the facts of what had occurred while refusing to allow the misfortunes of the past to dictate the future. This beguiling legal idea long undergirded attempts to restore rived relations in private and public life.
But over the course of the 20th century, as the cultural tide gradually turned toward an embrace of remembrance and recrimination, oblivion fell out of favor, and out of collective memory. Today we stand to benefit from remembering this forgotten kind of forgetting.
The oldest act of oblivion is usually dated to 403 B.C., when the Athenians, having survived the bloody reign of the Thirty Tyrants, swore to never remember the wrongs of a war within the family, a civil war that had divided Athens.
Citizens took an oath promising not to remember what had occurred, to not remind their neighbors of the evils of the tyranny. This did not mean that prior transgressions were simply forgiven and forgotten. Far from it: The Thirty Tyrants and their main accomplices were forced to choose between exile or prosecution for their crimes. Everyone else — even those who had fought for the losing side — was restored to full rights and received restitution for losses. Together, former enemies who would live side by side swore to never again recall the brutal reign of the Tyrants, at least not in public.
It was not a simple promise. As the French historian Nicole Loraux argued, by professing never to remember, they also made a binding commitment to never forget. This element is what fuels my obsession: At one of the supposed origin points of democracy, there is at once a disavowal of memory and an embrace of its power.
For centuries, this ancient episode captured the imagination of emperors, kings, queens and legislators, who sought to emulate it in bringing an end to their own conflicts. Cicero declared an “eternal oblivion” in Rome after the assassination of Caesar. Desire for oblivion proliferated in diplomatic exchanges and eventually became a fixture in international peace treaties. The 1648 Treaty of Westphalia, the supposed origin point of our world of sovereign states, promised that all the violence, hostility, damage and expenses that had been incurred “on the one side, and the other … shall be bury’d in eternal Oblivion.” In 1660, the Indemnity and Oblivion Act restored the British monarchy after the English Civil War; in the period leading up to the Revolutionary War, British colonial governments passed Acts of Oblivion to try to quell the rebellions of their American subjects.
After the Revolution, several states passed Acts of Oblivion to reintegrate residents who had fought for the losing side. Like the Athenians before them, early American state legislatures extended the grace of forgetting to all but a select few offenders, such as those who had served as officers in the British Army and those who had committed “willful and deliberate murder, robbery and house-burning.” In this way, a tradition of oblivion was a critical element in the creation of the United States, and this paradoxical strain of forgetting — but not forgiving — part of the foundation of our union.
In times of seemingly insurmountable division, it is to oblivion that prior generations have turned. In 1946, Winston Churchill dared to call for an oblivion to help the European continent recover from the ravages of war. “The guilty must be punished,” he proclaimed. But when the trials had concluded and Germany had thoroughly disarmed, he argued, “there must be an end to retribution.” In 1975, the editorial board of this newspaper, quoting Churchill, advocated a “blessed oblivion” for resisters of the Vietnam War, arguing for “a simple act of slate-wiping” to allow them to return to their normal lives. “No nation can afford to keep alive the bitterness of its past wars,” the board argued.
To remember the power of oblivion is not to naïvely wish away the wrongs of the recent past, but rather quite the opposite: By marking certain transgressions as unforgivable and unforgettable, it recognizes the depth of the loss while also opening a path toward political pragmatism. Historically, appeals to oblivion acknowledged that at the end of the day — or at the end of the war — participating in political life meant living among one’s former adversaries and offered a vocabulary with which to navigate that uncomfortable yet inescapable relation.
Earlier this year, I went looking for the lost altar of oblivion that is said to have once adorned the Acropolis in Athens. I wandered around the Erechtheion, the shared temple of Athena and Poseidon, where it is said to have stood, looking for what might remain. The temple was under construction, one of its sides embraced in scaffolding: A woman with the Acropolis Restoration Service stood on an elevated metal platform looking over blueprints before she began cleaning soot and dust from its pockmarked columns. I peered into the temple base, its floors long ago destroyed, what remains now overgrown with grass and populated with artificial lights.
I allowed myself to speculate about whether some part of the missing altar might still lie anonymously among the many unmarked stones stacked across the Acropolis grounds. Yet no archaeological evidence of the altar has ever been found, and, as a kindly archaeologist told me, somewhat pityingly, “it will never be found.” Like the idea it represents, it has been almost entirely lost to time, reduced to little more than a historical curiosity.
In its absence, so much has been forsaken. As I circled the Erechtheion snapping photographs with my iPhone — images meant to remind me of what I did not find there, of what was long ago forgotten, images that my phone automatically backed up to the cloud in a bid to preserve them for all time — I wondered what it would mean to revive the old idea of oblivion in our age of seemingly unending memory.
Over the past several decades, our society has become oversaturated with memory. In our legal system, a single, low-level crime can ruin an individual’s life forever, people are forced to serve sentences for acts that are no longer illegal, and even a sealed conviction or an arrest with no charge can jeopardize job, housing and volunteer opportunities. One in three U.S. adults has some kind of criminal record. Outside the legal realm, online mug shot repositories preserve often embarrassing records of decades-old arrests and minor violations; social media ensures that accounts of even the slightest mistakes and violations can circulate endlessly online. This virtual culture of incessant, uncompromising remembrance and recrimination has seeped from our screens, affecting the kinds of conversations we are willing to have in public, and with whom.
Politically, we cannot bring ourselves to look away from the past, even as we hope that it will not recur. Over the past several months, the Republican-controlled Committee on House Administration has released thousands of hours of security camera footage from Jan. 6 to the public. In a March statement announcing the release of 5,000 hours of footage, House Republicans explicitly sought to undermine the final report of the Jan. 6 Committee, which laid responsibility for the riot squarely on the shoulders of the former president, arguing that it was neither nonpartisan nor transparent. With every new tranche of footage posted, the national wound that was Jan. 6 is gouged open.
The release of that footage — including hours of tape that shows nothing more than a closed door or a vacant parking lot — is emblematic of a related memory crisis. Somewhere, a computer server labors to contain the terabytes of data those videos require. Every day, we depend on our devices to store every photograph, every video, every file. We store all these things because we have learned a bit too well that it is important to remember, to archive, to keep receipts and screenshots. To create a faithful, digitized log not only of our own lives but also of those around us. To “never forget,” and to allow ourselves to believe that merely repeating these words is enough to protect us from the world’s horrors.
For the past many decades, we have been very good students of memory. So good that we have, I think, forgotten what all our memory is for — that it can guide us to choose justice over vengeance, even if the desire for the latter often far outweighs the former.
Revisiting the forgotten idea of oblivion would give us permission to reconsider our unthinking overdependence on memory and perhaps to begin to let go of all the data, digital and otherwise, that we do not need. Memory, after all, is not infinite: It mutates with time, a fact I am reminded of whenever my phone tells me I have run out of cloud storage space or when my computer informs me that an old document can no longer be opened. The same is true of our personal and political memories, which, left to fester for too long, can corrode and transform, causing us to lose sight of their original force and feeling.
Gripped too tightly, memory can become a vengeful and violent force.
While oblivion has been all but forgotten, there are some heartening signs that it is being rediscovered and transformed, its spirit marshaled toward granting individual clemency. To date, 12 states have passed Clean Slate laws that allow for the automatic sealing of misdemeanors and other charges after a set period of time. Over one million Pennsylvanians have benefited from the bill, and over 45 million records have been sealed as a result. Under New York’s Clean Slate Act, which was passed last year, many individuals who have fulfilled their sentences and stayed out of trouble for a set period of time will have their convictions automatically sealed, removing a major obstacle to securing steady employment, housing and benefits. Like Acts of Oblivion, Clean Slate laws neither undo the crimes of the past nor erase the damage wrought, but they do ensure that punishments are not perpetual.
We are seeing a hunger for forgetting elsewhere, too. The European Right to be Forgotten gives individuals the ability to demand data erasure and to request that search engines remove personal data that is no longer relevant and not in the public interest. In the United States, the proliferation of data privacy laws — some of which enshrine the “right to delete” personal data collected by businesses — promises a similar strain of digital oblivion. These measures give individuals a chance to pursue futures that are not circumscribed by the missteps of the past.
The same opportunity will soon confront our nation. We can decide whether or not we will allow Jan. 6 to shape the contours of our country for many years to come. It is clear that we have not yet figured out how to collectively confront and memorialize what was at risk that day, nor have we adequately protected our democracy from the possibility of its violent repetition. Trying and sentencing all of the participants will not alone deliver the moral reckoning that our country sorely needs.
Mr. Nester, the man who stood trial instead of the former president in March, was convicted of all four charges against him. He is set to be sentenced in July. It is unlikely that Mr. Trump’s criminal trial for inciting the riot will have even begun by then, if it ever does get underway.
If we had not forgotten the tradition of oblivion, it is possible to imagine that we might have had been quicker to recognize and deal with the violent effects of that terrible day: If we had followed the ancient blueprint for political oblivion, the former president and his inner circle would have been the first to be tried and punished for their roles on Jan. 6, and the fate of the rioters might not have become the political football that it is today. Instead, the former president has so far been able to campaign on a platform of grievance and recrimination, capitalizing on the vengeful spirit that propelled him to power in 2016 and may very well do so once more.
The unique power of oblivion is that it does not forgive the crimes committed on one side or the other, but rather consecrates and memorializes the profound gravity of the wrongs. It demands accountability and refuses absolution, yet it rejects the project of perpetual punishment. Where forgiveness is impossible, the only viable option is to look past the wrong, to bury it in oblivion, but to always remember where it lies and the harm that it caused. Historically, appeals to oblivion offered political communities the prospect of rethinking the present, presenting a rare opportunity to re-evaluate and confront societal divisions.
These efforts were not undertaken as wishful attempts to prevent the past from recurring, but out of the terrifying conviction that to proceed with business as usual would be to ensure that it would. While we cannot change the past, rediscovering the civic possibilities of oblivion might open pathways toward lasting democratic renewal in the future, however far-off it may seem.
Linda Kinstler is the author of “Come to This Court and Cry: How the Holocaust Ends.”
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