January 6 and the Case for Oblivion

What if President Joe Biden had pardoned the January 6th insurrectionists? That is, the 1,500 or so people charged with federal crimes related to the riot. And yeah, I said Joe Biden, not President-elect Donald Trump.
This is an idea I've heard floated around these past few weeks, and on its face, it sounds illogical. Like, why on earth would the outgoing Democratic president pardon people who damaged property or injured law enforcement officers or plotted to overthrow democracy? Trump has said many times that he will pardon the J6ers.
He said he'll pardon some of

them or most of them or even consider pardoning all of them at different times. He said he'll

pardon them on his very first day in office, which is just in a few days. People that were doing some

bad things weren't prosecuted and people that didn't even walk into the building are in jail

right now. So we'll be looking at the whole thing, but I'll be making major pardons.
Yes, please. Right.
So why would Biden do that again? I'm Hannah Rosen. This is Radio Atlantic.
The answer to that question requires you to zoom out to different countries and different periods of history to understand the long political traditions that pardons are a part of and what, at their very best, they could accomplish. And it matters who does the pardoning and their motive for doing it.
I myself did a lot of research on the January 6th prosecutions for a podcast series I hosted for The Atlantic called We Live Here Now. And as I was researching, I came across a couple of articles by author and journalist Linda Kintzler that helped me understand these cases and this charged political moment in a new way.
Linda is a junior fellow at the Harvard Society of Fellows. She writes about politics and collective memory, and she's written for many publications, including The Atlantic.
She's also working on a new book about the idea we're talking about today, which is Oblivion. Linda, welcome to the show.
Thank you for having me. Absolutely.
So the J6 prosecutions are for the most part unfolding at the federal courthouse in D.C., just a few blocks from where we are now. Linda, you attended some of these cases.
I did also. What is your most vivid or lasting impression from these trials? Oh, wow.
I mean, I spent months, I mean, the better part of a year, actually, attending these trials in downtown D.C. And there are so many elements, as you have described, about the courthouse, you know, namely that it's right across from the Capitol and overlooks the grounds upon which all of these crimes happened.
And, you know, there were so many times I was walking through the halls of the courtroom and some of them had little windows you can peer through. And almost on every single one,

there was one day when I, you know, you could see the monitors in the courtroom and you could see

that they were all playing January 6th footage. You know, different angles.
You could hear the

sounds of the footage that the prosecuting attorneys had assembled.

We're about five weeks out. We're trying to make our way through all this.

And you really do get the sense there that in this building,

this really pivotal event in history is being litigated and worked through in real time,

kind of away from the public eye, even though these are open to anyone who wants to come see them.

We need to hold the doors of the Capitol. A few of these cases have stuck with Linda for different reasons.
One was the hearing of a member of the Proud Boys. It was the juxtaposition of this violent offender and his young kids who were playing around on the courthouse benches at his sentencing.

And the other was a woman, a nonviolent offender with no prior record.

She just kind of walked through the building and clearly made horrible, horrible choices that day, as many of them did who were there.

And she repented before the judge.

And the judge said, I'm choosing to view this as an aberration in your life, as a kind of lapse of judgment. And she cried.
And did you feel, like, how did you feel in that moment? Like, did you feel like, oh, there's some injustice being done or not quite that? No, I mean, I think this is justice, right? I mean, this is actually the levers of justice working. You know, it is absolutely that these people broke the law and they are being brought to court because they violated public order in different ways.
So it is kind of like our er definition of justice.

But it's a different question, and I think this is the one that has kind of been left undealt with in public,

is, okay, this is one version of justice, but this is not a kind of public reckoning with what January 6th was,

and the kind of how these individual offenders are being treated and punished for what they did is not the same thing as how is the country going to deal with what January 6th threatened to kind of the fabric of democracy. Those are two separate questions, I think.
Interesting. So what you're saying is there is a legal process unfolding.
The courts can do what the courts can do. But what you're saying is the courts can only do so much.
Correct. Yeah.
Right. And there's like in general been an over-reliance, I think, upon the legal process to kind of like deal with January 6th for, quote unquote, us, for us, the public in a way.
And, you know, I don't think there has been a kind of broader conversation about what it means in the long haul. Okay.
I want to take what you just said and compare it to the public conversation that is happening around these court cases, namely from Trump, because we're a few days from him taking office.

Ladies and gentlemen, please rise for the horribly and unfairly treated January 6th hostages. And the way he puts it is that the J6ers were treated unfairly, persecuted by the justice system.
They're hostages. You know, he said this in many different ways with many different degrees of passion throughout the course of his campaign.
Well, thank you very much. And you see the spirit from the hostages, and that's what they are, is hostages.
They've been treated terribly and very unfairly, and you know that. What do you think of that argument, and how does that fit into what you're saying? Yeah, I mean, like, on the face of it, what they are doing is, you know, manipulating historical terminology, right, for their political ends.
So you don't think they were unfairly—like, your argument is not at all that they were unfairly persecuted. No, no.
I mean, I think that they broke the law and they should be punished for what they did. I think there's a genuine argument you could have about which offenders should be kind of facing jail time, but I don't think that's the conversation we're having right now.
But I do think, you know, what this question raises is the fact that Trump himself has not been held accountable for what he did on January 6th, right? And there were many efforts to do that. And my view of this whole process is that, historically speaking, we're doing it kind of backwards.
Historically, it was the top people in power who oversaw the crime, who would be the first to be held responsible for what they had done. In this case, we have almost the exact opposite, right? We have the lower level offenders, the people who are easier to find, the kind of foot soldiers of Trump's, you know, movement who are being the ones hauled into court.
And obviously, we have seen the efforts to prosecute Trump himself have kind of sequentially collapsed and are now are almost certainly not going to happen.

Do you have an example in your head of a time when historically it unfolded in the correct way? Like a way that promotes a sense of fairness and justice? Yeah, I mean, this is the kind of subject that has fascinated me for many years is like how have societies worked through moments in which you have a population of perpetrators or people who have violated the public order, who nevertheless must remain in the country or the city in some way? How have you dealt with that? And so in my work, the kind of prototypical example comes from ancient Athens after the reign of the 30 tyrants, where you had a population of oligarchs, 30 of them, who overtook the city, stripped people of their rights and properties, killed people unjustly, oversaw all of these abuses, and then were deposed by the victorious Democrats. After the fact, there was a kind of general amnesty for most of the supporters of the 30, but the 30 tyrants themselves were made to choose between standing trial and exile from the city.
So in that case, you have like this prototype of the people who were responsible having to account for their crimes verbally and in, you know, kind of legal system while the kind of lower level of people were offered a different set of choices. And of course, like, the reason this is so fascinating is because this becomes the blueprint for centuries of leaders after that.
You know, if you look at 1660 after the English Civil War, it kind of comes after World War II, where there's this question of what do we do with Nazi perpetrators? How wide and deep should the justice run? And we know that denazification failed in many ways. So I do think, you know, in our country, we are going through something like this, in a sense.
Yeah. Can we talk about Nazi Germany for a minute? I mean, I realize we always have to be careful when we're making historical comparisons to Nazi Germany.
But you threw out the sentence, denazification didn't work. There were, though, a lot of higher Nazi officials who were held accountable.
So how can we use what happened in Nazi Germany to inform what you're saying we have to figure out right now? Right. So, I mean, yes, of course, saying genazification didn't work is a huge sweeping claim, and we can argue about that a lot.
But what you had there was, you know, the Nuremberg trials, of course, what we think of as Nuremberg did hold, you know, the top brass accountable for what they had done. And then you had many, many smaller sequential trials, both in West Germany and in the former Soviet Union.
But you know what, I often think of, and I want to be

careful about making the comparison today, of course, but I have been thinking about this line

that the philosopher Judith Schlar said, which was that, you know, why denazification failed in many

ways was because the prosecutors mistook a group of individual offenders for a social movement.

So in other words, they thought that by continuing with all these trials, that they would squash the kind of violent, virulent sentiment underlying Nazism itself. Which holds some intuitive appeal, because you think, I'm holding people accountable.
That's what we're supposed to do as a society, hold people accountable. Totally.
And it feels good. Like it appeals to all of our liberal sensibilities about how, you know, order and justice are supposed to work.
And particularly you say liberal, because I think right now we do have this divide where Democrats or maybe the left are trusting in institutions and the right is a lot less trusting in institutions. So Democrats are putting their faith in this case, in this institution, the court, to go through the paces and do the right thing.

Exactly. You know, we are in a very legalistic society in that we like to talk about courts and legal cases as kind of solving political problems.
And I do think we repeatedly have seen that over the last however many years about, you know, oh, maybe the courts will save us from Trumpism writ large. And we have seen, you know, of course, that the legal system is just not capacious enough to do that for many reasons.
That's a really interesting and concise way of looking at it. Like, we have been relying on kind of Jack Smith, the cases against Trump, these Jan 6 cases of which they're, you know, 1,500.
What's the gap? Like, what does the legal strategy leave out? I mean, so much in that it's just a legal strategy, right? It doesn't, and I think, you know, I can kind of see this in the almost allergy that people have when talk of pardons comes up, for example, right? There's this notion that if you pardon someone, you're letting them off the hook. But that's not what a pardon does.
A pardon confirms the crime. And I guess I'm saying there is this paucity of kind of a wider understanding of what happened that day because it has become this kind of legalistic football, right? Of like, who was standing where? Who was part of the mob? What does it mean to be part of the mob? Who was commanding them, et cetera, et cetera? Like, you get lost in all these details in all these individual cases.
And of course, this is the role of historians, right? To say, this is what that event did that day, and this is its lasting impact. But that's what I'm saying.
That's the gap, right? The gap is, what is the narrative of this, of this event? How do you protect it from manipulation, particularly when the person who's about to be inaugurated has been one of its, you know, kind of manipulators in chief? And I do think there are answers. Okay.
Let's just ground ourselves in the moment we're in. You know, let's say on day one, Trump does what he has many times said he's going to do, pardon the J-6ers.

I'm going to be acting very quickly.

Within your first 100 days, first day?

First day.

First day.

Yeah, I'm looking for these pardons.

These people have been there. How long is it?

Three or four years?

Is it possible that it accomplishes any of the goals of putting this to rest, like any of the goals of reconciliation? I mean, reconciliation, I think, is a different question. I think it's not going to accomplish that.
I think the only sense in which it puts it to rest, quote unquote, is that it will, as I said, confirm their crimes, right? A pardon does not erase what people did. It's unfortunate in my view that Trump will be the one to pardon them because I do think there was an opportunity for the Democrats to extend a kind of grace towards some of the January 6th offenders and by by no means all of them, if they had been

the ones to pardon them. Okay, you said that casually, and there have been a few law professors who floated that idea.
It is, on its face, a kind of shocking idea. Like, when you read a headline that says, should Joe Biden pardon the J6ers, it's actually kind of hard to get your head around.
What do you think of that idea? Well, I think, you know, first of all, historically, pardons have been almost a routine thing that any new ruler or president has done upon taking office. Are you glad that you pardoned those people that went to Canada, the draft evaders? Yes, I am.
Why? Well, it was a festering soul and involved tens of thousands of young men. Like, I was reading about Jimmy Carter, who pardoned draft dodgers, and thinking that, like, we can look in retrospect and say they were peaceful and the January Sixers were violent rioters, but it must have been hurtful to a lot of people whose children or who, whose children or who they themselves went to Vietnam didn't want to.
And it must it was quite controversial. So so to what end does a new president pardon people? Well, I mean, it's kind of on the face of it.
It's, you know, a gesture of goodwill. But it's supposed to say, you know, we are all subject to the law and let's kind of start on the right foot, et cetera, et cetera.
So it sets a national mood.

Like it sets a mood of, I'm the president for all of you, we're all in this together,

and the value of this country is mercy.

Mercy is a value.

Yes.

So after I made my inaugural speech, before I even left the site, I went just inside the

door at the national capitol and I signed the pardon for those young men. And yes, I think it was the right thing to do.
I thought that it was time to get it over with. I think the same attitude that President Ford had in giving Nixon a pardon.
...and peaceful world around us. We would needlessly be diverted from meeting those challenges if we as a people were to remain sharply divided over whether to indict, bring to trial, and punish a former president who is already condemned to suffer long and deeply.
I was looking for historical precedent and read about George Washington and the Whiskey Rebellion, because that was a fairly violent rebellion in which he, and it was hundreds of people, and he

pardoned some of them.

And I was wondering if that was analogous.

Yeah, no, I mean, I don't know about the analogy, but it is kind of an instance in

which you have a violent community of offenders who nevertheless must remain in the country,

right?

The power has been used sometimes, as Alexander Hamilton saw its purposes, in seasons of insurrection, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the Commonwealth, and which, if served to pass unimproved, it may never be possible afterwards to recall. You can't get rid of all of them.
It wasn't moral forgiveness. It was just a measure that allowed them to remain in the society in a way that wouldn't cripple the society itself at this moment of extreme fragility.
so yes there are presidential pardons

but if we can neither

forgive at this moment of extreme fragility. So, yes, there are presidential pardons.
But if we can neither forgive nor forget something, we just may need something else to move forward. An act of oblivion.
That's after the break. Aging can feel like a weird game.
A healthy diet? Two points. A bad night's sleep? Lose a turn.
I'm Natalie Brennan, a producer at The Atlantic. And I'm Yasmin Tayag, a staff writer at The Atlantic.
This season, we're going to find out if longevity culture is keeping pace with the science. And what we can learn about taking a different approach to aging.
Listen to How to Age Up. New episodes of How to Age Up come out every Monday.
Listen and subscribe wherever you get your podcasts. Linda, you have researched and written about what's called an act of oblivion.
Can you lay out the basics of what that is? Yes. So historically speaking, we see that there were either acts of oblivion, laws of oblivion, or articles of oblivion that appeared in peace treaties or as legislative measures or as kind of like a kingly edicts that were issued in the aftermath of revolutions, wars, and uprisings.
And what they were essentially as a kind of like resetting of the legal order where they said, you know, and this is generally happening in the kind of quote unquote Western world, but we also see similar measures elsewhere. But what they would say is, you know, everything that happened prior to this law, whatever it was, whether like hostility, war, killing, theft, etc., none of that can be litigated or spoken of in public, which often meant, you know, you can't bring a lawsuit after this measure is passed.
So it's not actual forgetting.

It's like a public declaration that we shall all forget together. Right.
And like in some ways, forgetting isn't even the right word. And the interesting thing to me is that, you know, the word oblivion is the kind of Roman invention that was used to describe it, that Cicero used after the fact.
And that was kind of like his spin on it. Right.
Everyone is telling tales about how to make a democracy work or how to make a state or a kingdom work, right? Not all of these were democracies. But yeah, forgetting in some ways, it's not really the correct description of what's going on.
It's more of a kind of collective agreement about how you're going to move past something that is like fundamentally irreconcilable. Got it.
It's almost a funny word, like I'm going to blast you into oblivion. Like it's a very powerful word.
I don't know if it was meant as kind of campy, probably not by the Romans, but there is something kind of like huge about it. Yeah.
Oblivio semperna, eternal oblivion to kind of wash away everything. It's a totally beguiling word and it kind kind of connotes erosion in English and erasure.
But like, there's also, you know, in other languages, in Russian, it's, you know, вечная забвения, eternal oblivion, right? Eternal forgetting in a way. So it's almost so grand and big that it's not connected to the mundane act of, oh, I forgot my keys.
Like, it's almost so big that it's on a grand national scale. Maybe it's something like that.
Yeah, like, it's like you're always rescuing things from oblivion or losing things to oblivion. I mean, it is in a way, right? Because you're burying something in oblivion.
It's a physical location, right? It's a noun, oblivion. And so, to me, I think of it as like, okay, you're burying it, but you're not forgetting where it is, right? It's always there.
So what's the difference between what you just described and whitewashing, revisionist history, sort of what we've seen happen with January 6th and Trump calling it a day of love? But that was a day of love from the standpoint of the millions. It's like hundreds of thousands.
It could have been. Like sort of actively describing it as something it wasn't.
Can you compare those two modes? Yeah, I mean, I would say they're kind of fundamentally opposite, right? Like one is constructive and one is malignant, right? Which is not to say that the two couldn't be conflated. But like for the sake of argument, like the oblivions I have been looking at have been kind of like ideal types, like obviously none of these historically ever work perfectly, right? It's more about the idea that people wanted them to work, that there was this kind of desire for reconciliation that would be operative.
And obviously, that's not what you see at all in the language that Trump has been using and in the way he and his supporters have been framing January 6th. Usually, like I think if we were to kind of follow the framework of oblivion, what should have happened was that Biden, upon taking office and kind of restoring liberal order, we could say, would have passed an act of oblivion for the January 6th that would have mandated that kind of Trump and his immediate circle would have to stand trial for their actions that day.
And what we have been seeing with the kind of the lower level offenders that some of them would not have had to explicitly as a kind of gesture of goodwill. A couple of challenges I can think of to using this approach with January 6th.
The first surface one is

just the sheer amount of documentation, YouTube videos, like what you're describing, which is a clever act of forgetting or a memory game. It's, I mean, you know, like if you're a prosecutor working in the federal courthouse, this is a gift.
Like you've seen these trials. Basically what you're doing at these trials is watching videos.
Like some Facebook video that somebody made saying, hey, I was at the Capitol. Like I did this.
Me, nobody else did this. Like literally that's what some of them say because they're proud in that moment.
I'm ready to do whatever it takes, I'll lay my life down if it takes.

Absolutely.

And then, I mean, there's footage from everywhere.

Yeah.

So since you are talking about historical examples, what do you do with an era in which everything is uber documented?

Yeah, and it's actually interesting. I mean, I was in a couple of trials where the judge was like, to the prosecutor was saying like, listen, I've been to so many of these trials, you do not need to establish for me what happened on January 6th writ large, like, I get it.
Like, can you please fast forward? But I mean, I guess what I'm talking about is not even about like, oh, keep these videos from circulating or don't talk about what happened. It's more about don't expect the legal process to achieve something that cannot be achieved through law.
Okay, that makes sense. You just have to accept the fact that the footage is everywhere.
The footage is, in fact, maybe that makes what you're saying more urgent, because I do find even with myself, like if I hear a Capitol Police officer, you know, on the radio, if I watch that A24 movie that's documentary about January 6th, it's like right there all over again. And you just have to be maybe aware that that's the age we live in.
Second question I have is I read your various articles you've written about oblivion and it almost scared me reading them only because we live, this is the first era that I've lived through as an adult, where I've watched the revising of history happen in real time. Like, I don't recall a president talking about facts, the opposite of what I saw with my own eyes.
It's a very bad feeling. So in that context, I feel nervous about even entering into a conversation about oblivion, memory games, or anything like that.
And I wonder how you've squared that. Oh my gosh, absolutely.
I mean, this is what fascinates me, precisely because we are in this era of kind of historical revisionism, and we have been for a long time. But the thing about Acts of oblivion is that they actually, in my mind, consecrated what happened, right? They protected the historical record.
They didn't literally say, oh, this never happened. And in fact, what you see is that they're often accompanied by records, like historical accounts of what happened such that an act of oblivion was necessary, right? Like, okay, actually, what happened here was a civil war or a tyranny or a revolution that kind of totally wiped out the legal order.
So we needed to do this extremely drastic thing if we were to kind of reestablish democratic law. The one that I often point to is after the Revolutionary War, there were, because you did have the kind of legacy of British law, right? That, you know, an act of oblivion came to the Americas from the European system.
So there you did have kind of royalists who were subjected to acts of oblivion. It was individual states passing them over their royalist populations to allow them to remain even though they had been defeated.
So it was essentially an act of mercy saying the royalists are going to live among us.

They're not going back.

And what?

How did it define them?

It meant that they couldn't be ostracized, essentially.

Like they couldn't be perpetually held accountable for what they had done, for everything that

they had done against their neighbors, right?

And often it was a kind of like very local proximate question, right? Of like, we're not going to kind of kick you out unless you want to be kicked out, that kind of thing. So you could imagine that kind of thing would be controversial at first, like people would want vengeance.
And so in the immediate, it would be difficult to swallow, but then in the long term, it would put things to rest. That's the idea.
Yeah. And I mean, there are a lot of failed oblivions.
I mean, you know, after the Civil War, a lot of the Southern states were quote unquote crying for an act of oblivion. And it was a term that was circulating in the papers.
And there's this amazing quote from Frederick Douglass who said, you know, I look in Congress and I see the solid South enthroned. And the minute that that is not the case, we will join you in calling for an act of oblivion.
But as long as they have not been held accountable, we cannot support this.

Okay. So let's move to the current movement.
If you were King Linda, so is what you would want an act of oblivion around January 6th? No.

No.

No, because I would never be so bold as to say that.

But I do think it's like a useful political concept. I think that there was a missed opportunity during the Biden administration to do something concerted that wasn't just the Jack Smith investigation about it.
I think there could have been something really meaningful done. Okay, so you're not going all the way to saying, you know, an act of oblivion.
But you've started to eek at little things.

Like, what do you mean by Biden could have? I mean, we're in the very, very last days of the Biden administration. But if he had pardoned some of the low-level offenders, would that have been, like, in the spirit of oblivion? Yeah, I think that would have been a really potentially transformative thing to do because, you know, it would not have done anything to jeopardize the record of what occurred that day or what it meant to participate in it.
But we are going to move beyond it. And I think we will see the narrative of January 6 begin to settle in some way.
Right? And as always happens, the conspiracies about it will become part of the narrative of how this is told, right? Not in a kind of whitewashing way, but just in like a kind of, it shows how volatile it is and how manipulable, you know? And I think like there's been this debate about how to memorialize that day, right? Whether it's through a physical memorial, a memorial to the Capitol officers who died or to anyone who died that day. I think those are the questions that we haven't kind of figured out really.
I see. So there is a potential that even though we're not figuring them out now, they'll be figured out in a sideways way through questions down the road.
Like questions about how we will ultimately remember that day. Not necessarily how we'll remember it in this charged political moment, but like how we'll remember it 10, 20 years from now.
I mean, I was at the Capitol for the year anniversary of January 6th and kind of like watched all the ceremonies from the press gallery. And it kind of just struck me how it was almost like a kind of nothing, you know, like how it was.
What do you mean? It was just so quiet, somber, of course. But it was there was no fan like you didn't get the sense that of the enormity of the event that was being consecrated.
Right. And it was almost like this, you know, an understandable because it was so close and so terrifying.
You know, there was this kind of sense that like we haven't figured this out yet. ...
will be in order. Subcommittee on Criminal Justice of the House Committee on the Judiciary today welcomes the President of the United States, Gerald R.
Ford. To feel compassion and to act out of mercy.
As a people, we have a long record of forgiving even those who have been our country's most destructive foes. Yet to forgive is not to forget the lessons of evil, in whatever ways evil has operated against us.
And certainly the pardon granted the former president. This episode of Radio Atlantic was produced by Janae West and edited by Claudina Bade.

It was engineered by Rob Smirciak and fact-checked by Sarah Kralewski.

Claudina Bade is the executive producer of Atlantic Audio, and Andrea Valdez is our managing editor.

I'm Hannah Rosen.

Thank you for listening. One has to understand it.
Where it came from. How it works.
What's true. What's not true.
What others did before you. How it could be better.
How to make a difference. I'm David Frum, a staff writer at The Atlantic.
I'm starting a new show where each week I'll dig deep into the big questions people have about our politics and our society.

I'll explain progress that the peoples of the democratic world have made together

and remind you that the American idea is worth defending.

Listen to or watch The David Fromm Show wherever you get your podcasts.