Part Three: Domestic Tranquility

In part one I tried to make people understand the difficulties inherent in the interaction between police and protesters as the latter suddenly changes from a protest to a mob to a riot. In part two I attempted to show that while nearly everyone agrees violence (and its incitement) is wrong, it’s hard to describe when the threshold is crossed. Historically, the United States government treats such violence as a crime, not a national security threat (for good reasons justified by the exceptions to the rule). In part three, I’ll cover the really difficult area: how we get back to normal!

“We, the people of the United States, in order to form a more perfect union, establish justice, insure (sic) domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United State of America.”

Preamble, US Constitution

Man, could we use some domestic tranquility now! I want to distinguish further two different approaches to the way forward: one centering on punishment, and the other focusing on mercy. For shorthand, the punishment approach I’ll call Reno after US Attorney General Janet Reno, for her decision to end the Waco hostage crisis, and the mercy approach I’ll call Lincoln, for the President’s views on how to deal with the former Confederates. I mean no disrespect to AG Reno, as the DOJ after action report supports her decision. It is not about being right, it’s about going forward and living together.

On November 3rd, 2020, over seventy-four million Americans voted to support a second term for President Donald Trump. Despite receiving the second most votes in American Presidential election history, he lost by seven million popular votes and seventy-four electoral votes. The challenges posed by counting vastly increased mail-in ballots led many to believe President Trump was “ahead” when night fell, but behind in the days that followed. This effect was predicted (called a “red mirage”). In reality, there is no “ahead” nor “behind” in an election; the counting is a process that has no result until it is completed. Our fixation on immediately knowing how the vote counting is proceeding (why? Who absolutely HAS to know who wins on election night?) birthed a myth of a stolen election, a myth which has failed to deploy a single significant piece of supporting evidence.

On January 6th, 2021, tens of thousands of Trump supporters attended a rally in support of this myth. They came in organized groups from all over the country: supported and transported as at every large Washington, DC event. They fervently believed their leader, who incited them to march to the Capitol, where he hoped their presence would intimidate the Vice President, Senators, and Representatives into not certifying Mr. Biden’s victory. Several thousand marchers did so. The protest and the rally march were entirely legal. Yes, they were misguided, but legal. Included in the larger group of protesters were smaller groups which openly planned to conduct violence and occupy the Capitol. This was never legal.

At the outer barriers of the Capitol, protesters overwhelmed police lines and surged forward toward the Capitol building, breaking the law as they broke the lines. While data is incomplete, it appears somewhere between three and five hundred violently fought their way into the Capitol and occupied it for several hours before being allowed to evacuate.

To summarize, tens of millions supported, tens of thousands rallied, thousands marched, and hundreds assaulted.

Take any large protest movement in US history, and you’ll find the same story. Abolition? Yes. Civil Rights? Yes. Prohibition and Repeal? Yes. Women’s Suffrage? Yes. Vietnam war? Yes. Black Lives Matter? Yes. The numbers and percentages vary, but the results remain the same. Any mass movement has protests, and protests beget mobs, and mobs riot and commit violence. And even peaceful movements have splinter associations or opportunists who agree with the ends but not the means, choosing violence as a necessary tool. Even the Capitol as a target is not unique, if you’re familiar with the 1968 riots or the 1954 Puerto Rican pro-independence assault.

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No, I’m not comparing the boneheads who smeared feces in the Capitol to the Mothers Against Police Brutality. My point? We have been through this before, and notwithstanding the talking heads trying to rile you up, we’ve been through worse. The treachery at the Capitol was certainly no worse than that of the civil war. The violence less than that of a single day in 1968. The planning less than several thwarted terrorist attacks. It was ugly and unconscionable, but not unprecedented.

One thing that was different was the President called for the rally and intended it to intimidate the electoral process. For that, he merits impeachment, conviction, and disqualification from future federal office (as I already opined).

But what of the movement, the rally goers, the marchers, and the rioters? Nothing has changed for them: they still cling to the myth. Where do we go from here? Braying influencers use the most extreme rhetoric: for treason, death; for insurrection, ten years. Justice demands punishment, but how much and to whom? The interest of domestic tranquility suggests something less harsh.

Here is where the Reno versus Lincoln debate arrives. I propose a Lincolnian approach:

For the millions who believe the election was stolen: they did nothing wrong. They were misled, but that is not a crime. They are no more liable than anyone who has said “Hands up, don’t shoot!” the last six years (no, it didn’t happen, according to some guy named Eric Holder). The incoming President should establish a bipartisan commission to investigate the results of the last two elections (myth-making goes both ways) and demonstrate how the outcomes came to be mistakenly characterized as illegitimate (2016) and a steal (2020). Will this convince everyone? No, but some percentage will look at the results and say: enough. And that’s worth another commission (and I HATE Washington commissions!).

For the tens of thousands attending the rally: nothing. Most knew no more beforehand than anyone else. But for those few speaking at the rally: public censure. Perhaps by the Congress, but certainly by all of us. When you are asked to whip up a crowd, you take responsibility for your remarks, and some of the speeches I have heard appear to be over the line. I don’t want the government prosecuting such speech, but we should all shun it: shame is a neglected part of our repertoire these days.

For those who marched to the Capitol: mostly nothing. This was permitted, and one would have to determine who knew about and overran the perimeters: a daunting task, but one worth attempting. If the authorities can figure it out, charge them with trespassing on federal property.

But for those hundreds who entered the Capitol building: charges of trespassing/unlawful entry/vandalism/theft and the like for every single one of them. And unless they can prove a claim of false identification (several already have), conviction and punishment.

For the subset who evidenced planning for violence, or committed any single act of violence (and there is ample video): prosecution to the full extent of the law for the specific offense. Not treason, not insurrection: felony assault, attempted murder, whatever. In Federal Court.

Now the pièce de résistance (oddly apt in this case), President Biden should offer a conditional pardon to anyone charged above (Lincoln & Johnson did the same). It should include as conditions: publicly accepting blame for the crimes; publicly admitting that the election was not stolen; publicly forswearing any further violence against the US government; and publicly proclaiming the Pledge of Allegiance. It should also be limited to the day of the riot, leaving those who planned for violence beforehand still at risk.

Do those things, and be welcomed back. Do them not, and accept justice.

We don’t need to exaggerate what happened. We do need to be specific about what was legal (a rally) and what was illegal (violence). I have said this from the beginning of the Trump administration: we must consciously avoid lowering the bar (for our behavior and norms), weakening our freedoms (Speech? Assembly?), diluting our system or compromising our laws (Insurrection? Treason? Really?). In response to our debaser-in-chief, so many have opted to debase themselves. This must stop now.

Finally, how to address the lingering discontent. President Trump didn’t cause this, he exploited it while exacerbating it. Much like we were told to treat the Black Lives Matter movement as a wake up call, I suggest we do the same with the nearly violent disquiet among the working classes. Many people seized on Trump as a candidate because they felt he was authentic, he heard them, he was looking out for them. They followed him on Twitter and watched Fox News or OAN because it was the only place they saw or heard anything like their own views. I guarantee that calling all of them white supremacists (remember: seventy-four million!) and banning them from publicly-available, privately-held media will not help the situation, especially when the terms of service being cited are regularly violated by others with impunity.

I don’t like the idea of the federal government regulating private media (FaceBook, Twitter and the like). But some means must be sought to ensure these private media services act justly and not stigmatize one side. If violence is the standard, apply it equally (not exceptions for those I like). If incitement is the standard, apply that equally. Or the federal government could simply remove these companies liability protection and let the courts work it out.

I do know this: the solution to ignorance is not stupidity, but education. The solution to bad speech is more speech, not banned speech. It is axiomatic in the therapeutic professions that “talking it out” works, while keeping it all bottled up doesn’t. Go full Reno: call them traitors, charge the with treason, fire them from jobs, hound them from social media. Sow the wind and reap the whirlwind.

Another idea: after the 2000 Florida election debacle, news media voluntarily agreed not to call state election results until all the polls were closed in said state. This was a responsible act, but not enough. I think now the media need to revisit the “Super Bowl” style coverage of election night: Given the possibilities of election challenges and voting irregularities, perhaps we don’t need the media to call elections at all. Perhaps coverage, even exit polls, without specific calls for some cooling off period of days.

President Biden intends to call for unity and comity: I say A-men. But it is easy to be nice to those we like, those with whom we agree. Understanding the other, being magnanimous with an opponent: that’s the salve to our nation’s wounds.