“After Domitian’s death the senate appointed Nerva to rule and it condemned Domitian’s memory (damnatio memoriae)”—Edward Gibbon, The Decline and Fall of the Roman Empire, Vol. III
In a previous piece, I proposed ways in which Democratic presidential nominee Joe Biden could limit the sabotage and election tampering that any prudent observer might expect from Donald Trump and Republican operatives. But beyond that, a new administration must prepare a plan, and the sooner the better, to address the longer-term damage that the current president and his paladins have already caused, steps that go far beyond holding one man and a few of his campaign aids and appointees legally accountable (although I certainly endorse prosecuting their potential crimes).
If a few things break right, we may see the end of the Trump administration in a few months. This is clearly not a time for premature celebration; there is nothing more dangerous than a cornered psychopath. But it is a time to start planning the immense job of clearing away the rubble and achieving something like public sanity. Yet a magic return to the post-Cold War status quo of a fossilized “normalcy” that disguises festering social dysfunction is neither possible nor desirable.
There have been many books advocating and analyzing the impeachment process, but no one has yet addressed the political crisis that ensues from a chief executive who not merely committed misdeeds in office, but whose warrant to hold that office may have been illegitimate.
The sheer mass of accumulating evidence, including the president’s own words, suggests to any reasonable observer Trump’s voluntary and enthusiastic acceptance of illegal election assistance from an adversarial foreign power. As of October 2020, evidence continues to pile up that he means to do this in the coming election as well.
A new administration must patiently and persuasively make every effort to demonstrate to the public that the process by which Donald Trump became president was tainted, and not sweep the unpleasant facts under the rug, as the Obama administration did with the lies and crimes of his predecessor’s invasion of Iraq.
If the election process itself was tainted, then all of Trump’s subsequent acts in office must logically be poisoned according to a reading of the legal doctrine of “unjust enrichment” -- if Trump’s policies remain, he would still be imposing the burden of his tainted election upon the American people while continuing to benefit his co-conspirators and donors. Whether foreign interference shifted enough votes to change the election result is, besides being impossible to establish beyond doubt, irrelevant: the law does not give “attempted” bank robbery a mulligan as compared to successful heists.
The goal must be to wipe the slate clean of acts and policies of the Trump regime that by their very nature are illegitimate, as they are based not on consent of the governed but foreign interference and illegal trickery.
Dynasties throughout history have retrospectively declared as an interregnum those periods ruled over by a usurper, and the interloper’s acts and decrees were considered illegitimate.
The same applied even to more democratically determined governments. There were several European parliamentary countries that were occupied for years by Nazi Germany. After the war, these reconstructed democracies realized that, in addition to purging their systems of wartime collaborators and their policies, things could not return to the status quo of the 1930s. The slate had to be wiped clean for society to move forward.
Trump’s removal from office is only the first step. A new administration and a fresh Congress must wipe the slate in much the same manner that the Romans used damnatio memoriae (the condemnation of memory) to literally erase the record of a traitor or a usurper by removing any trace or mention of the evil doer. While it is hardly practical for an updated version to make someone an “un-person,” in that sense, the spirit of undoing their acts should be employed, both as a transition to better governance, and to serve as an admonition to those who would rule America as dictators.
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A new Congress should pass a law of repeal covering the period of Trump’s regime since January 20, 2017 at noon; it would rescind all acts signed by Trump, all of his executive orders, and all of his appointments to federal positions. Congress would also specify that all government documents referring to Trump or his administration clearly carry the denotation that the period was a legal interregnum without constitutional legitimacy. This practice would follow the example of Germany’s Federal Archives; even archived official photographs from the Nazi era all contain a disclaimer warning that the original captions supplied with the photos may be “erroneous,” “biased,” or "politically extreme.”
Is this feasible? Can Congress undo judicial appointments without a formal impeachment and trial of each incumbent? Yes, Congress has the constitutional power to reorganize the judiciary; removing all of Trump’s judicial appointees would be the temporary use of such reorganizational power.
Would this seize up the functioning of government? No worse than Trump and congressional Republicans have already done. Trump’s administration has had an unprecedented number of vacancies in senior positions, and many agencies have limped along with acting directors for much of his term.
Congress, with Republicans backstopped by Trump obstructing any worthwhile initiatives, has been less productive than any Congress in living memory; it is hard to think of any law of much significance it passed other than the GOP’s beloved tax giveaway to the rich.
Doubtless, there will be exceptions to blanket nullification, but a new Congress must specifically exempt them. Likewise, it is impossible to unspend money already spent in appropriations bills, but any legislative riders attached to those bills can certainly be rescinded.
This kind of nullification will of course raise difficult issues, such as how to deal with White House and agency records generated when Trump occupied the Oval Office. Correcting the suppression of data, or in some cases its potential falsification in agencies like NASA, the EPA, or the CDC under Trump appointees, will be a matter of concern for Congress and the executive branch for years to come. The National Archives will have its work cut out for it, categorizing executive branch records, and separating the genuine from the spurious, so that an accurate history of the Trump years can be written.
Some will object that this is not the American way, which traditionally ascribes good faith to political adversaries and lets bygones be bygones. But the old way of doing things too often degenerated into mutual backscratching and the urge to forget inconvenient facts (a syndrome that is part of what Gore Vidal called “The United States of Amnesia”). It is part of what got us to this sorry present state: too many people refused to take Donald Trump seriously, considering him either a harmless jackass or someone who when handed power would magically grow in maturity.
Others may think that a thirst for justice too readily descends into vengeance-seeking, and might compare it to regime change in banana republics. But after Watergate, the norm has been to avoid justice entirely, such that blatantly criminal acts like Iran-Contra and the Bush administration’s unconscionable lying when it committed unprovoked aggression evoke a yawn from the Great and the Good. Does Trump’s deliberate sabotage of public health measures leading to tens of thousands of unnecessary deaths (when he was fully conscious from an early date of coronavirus’s danger) now merit the same treatment? When will our political establishment ever draw the line about illegal conduct by the powerful?
Denmark now, as it was 75 years ago, is an example of an enlightened and humane country, with mild criminal laws and a remarkable level of social trust. But after enduring five years of brutal occupation in World War II, thousands of collaborators were purged and 46 of the worst were executed. The least we can do is undo Trump’s misdeeds and foster a sense of national shame that too many of us took self-government for granted, while a surprising number actively tried to subvert it.
Damnatio memoriae is already playing out in towns across the Old Confederacy, including Virginia, where I live. Just up the road in Alexandria, a Confederate memorial has sat for decades, smack in the middle of the town’s main thoroughfare. Or it did until one day in June, when it vanished.