Becoming a public-health expert means learning how to envision humanity’s worst-case scenarios for infectious disease. For decades, though, no one in the U.S. has had to consider the full danger of some of history’s most devastating pathogens. Widespread vaccination has eliminated several diseases—among them, measles, polio, and rubella—from the country, and kept more than a dozen others under control. But in the past few years, as childhood-vaccination rates have dipped nationwide, some of infectious disease’s ugliest hypotheticals have started to seem once again plausible.

The new Trump administration has only made the outlook more tenuous. Should Robert F. Kennedy Jr., one of the nation’s most prominent anti-vaccine activists, be confirmed as the next secretary of Health and Human Services, for instance, his actions could make a future in which diseases resurge in America that much more likely. His new position would grant him substantial power over the FDA and the CDC, and he is reportedly weighing plans—including one to axe a key vaccine advisory committee—that could prompt health-care providers to offer fewer shots to kids, and inspire states to repeal mandates for immunizations in schools. (Kennedy’s press team did not respond to a request for comment.)

Kennedy’s goal, as he has said, is to offer people more choice, and many Americans likely would still enthusiastically seek out vaccines. Most Americans support childhood vaccination and vaccine requirements for schools; a KFF poll released today found, though, that even in the past year the proportion of parents who say they skipped or delayed shots for their children has risen, to one in six. The more individuals who choose to eschew vaccination, the closer those decisions would bring society’s collective defenses to cracking. The most visceral effects might not be obvious right away. For some viruses and bacteria to break through, the country’s immunization rates may need to slip quite a bit. But for others, the gap between no outbreak and outbreak is uncomfortably small. The dozen experts I spoke with for this story were confident in their pessimism about how rapidly epidemics might begin.

[Read: How America’s fire wall against disease starts to fail]

Paul Offit, a pediatrician at Children’s Hospital of Philadelphia and co-inventor of one of the two rotavirus vaccines available in the U.S., needs only to look at his own family to see the potential consequences. His parents were born into the era of the deadly airway disease diphtheria; he himself had measles, mumps, rubella, and chickenpox, and risked contracting polio. Vaccination meant that his own kids didn’t have to deal with any of these diseases. But were immunization rates to fall too far, his children’s children very well could. Unlike past outbreaks, those future epidemics would sweep across a country that, having been free of these diseases for so long, is no longer equipped to fight them.

“Yeah,” Offit said when I asked him to paint a portrait of a less vaccinated United States. “Let’s go into the abyss.”

Should vaccination rates drop across the board, one of the first diseases to be resurrected would almost certainly be measles. Experts widely regard the viral illness, which spreads through the air, as the most infectious known pathogen. Before the measles vaccine became available in 1963, the virus struck an estimated 3 million to 4 million Americans each year, about 1,000 of whom would suffer serious swelling of the brain and roughly 400 to 500 of whom would die. Many survivors had permanent brain damage. Measles can also suppress the immune system for years, leaving people susceptible to other infections.

Vaccination was key to ridding the U.S. of measles, declared eliminated here in 2000. And very high rates of immunity—about 95 percent vaccine coverage, experts estimate—are necessary to keep the virus out. “Just a slight dip in that is enough to start spurring outbreaks,” Boghuma Kabisen Titanji, an infectious-disease physician at Emory University, told me. Which has been exactly the case. Measles outbreaks do still occur in American communities where vaccination rates are particularly low, and as more kids have missed their MMR shots in recent years, the virus has found those openings. The 16 measles outbreaks documented in the U.S. in 2024 made last year one of the country’s worst for measles since the turn of the millennium.

But for all measles’ speed, “I would place a bet on whooping cough being first,” Samuel Scarpino, an infectious-disease modeler at Northeastern University, told me. The bacterial disease can trigger months of coughing fits violent enough to fracture ribs. Its severest consequences include pneumonia, convulsions, and brain damage. Although slower to transmit than measles, it has never been eliminated from the U.S., so it’s poised for rampant spread. Chickenpox poses a similar problem. Although corralled by an effective vaccine in the 1990s, the highly contagious virus still percolates at low levels through the country. Plenty of today’s parents might still remember the itchy blisters it causes as a rite of passage, but the disease’s rarer complications can be as serious as sepsis, uncontrolled bleeding, and bacterial infections known as “flesh-eating disease.” And the disease is much more serious in older adults.

Those are only some of the diseases the U.S. could have to deal with. Kids who get all of the vaccines routinely recommended in childhood are protected against 16 diseases—each of which would have some probability of making a substantial comeback, should uptake keep faltering. Perhaps rubella would return, infecting pregnant women, whose children could be born blind or with heart defects. Maybe meningococcal disease, pneumococcal disease, or Haemophilus influenzae disease, each caused by bacteria commonly found in the airway, would skyrocket, and with them rates of meningitis and pneumonia. The typical ailments of childhood—day-care colds, strep throat, winter norovirus waves—would be joined by less familiar and often far more terrifying problems: the painful, swollen necks of mumps; the parching diarrhea of rotavirus; the convulsions of tetanus. For far too many of these illnesses, “the only protection we have,” Stanley Plotkin, a vaccine expert and one of the developers of the rubella vaccine, told me, “is a vaccine.”

Exactly how and when outbreaks of these various diseases could play out—if they do at all—is impossible to predict. Vaccination rates likely wouldn’t fall uniformly across geographies and demographics. They also wouldn’t decrease linearly, or even quickly. People might more readily refuse vaccines that were developed more recently and have been politicized (think HPV or COVID shots). And existing immunity could, for a time, still buffer against an infectious deluge, especially from pathogens that remain quite rare globally. Polio, for instance, would be harder than measles to reestablish in the United States: It was declared eliminated from the Americas in the 1990s, and remains endemic to only two countries. This could lead to a false impression that declining vaccination rates have little impact.

A drop in vaccination rates, after all, doesn’t guarantee an outbreak—a pathogen must first find a vulnerable population. This type of chance meeting could take years. Then again, infiltrations might not take long in a world interconnected by travel. The population of this country is also more susceptible to disease than it has been in past decades. Americans are, on average, older; obesity rates are at a historical high. The advent of organ transplants and cancer treatments has meant that a substantial sector of the population is immunocompromised; many other Americans are chronically ill. Some of these individuals don’t mount protective responses to vaccinations at all, which leaves them reliant on immunity in others to keep dangerous diseases at bay.

If various viruses and bacteria began to recirculate in earnest, the chance of falling ill would increase even for healthy, vaccinated adults. Vaccines don’t offer comprehensive or permanent protection, and the more pathogen around, the greater its chance of breaking through any one person’s defenses. Immunity against mumps and whooping cough is incomplete, and known to wane in the years after vaccination. And although immunity generated by the measles vaccine is generally thought to be quite durable, experts can’t say for certain how durable, Bill Hanage, an infectious-disease epidemiologist at Harvard’s School of Public Health, told me: The only true measure would be to watch the virus tear through a population that hasn’t dealt with it in decades.

Perhaps the most unsettling feature of a less vaccinated future, though, is how unprepared the U.S. is to confront a resurgence of pathogens. Most health-care providers in the country no longer have the practical knowledge to diagnose and treat diseases such as measles and polio, Kathryn Edwards, a pediatrician at Vanderbilt University, told me: They haven’t needed it. Many pediatricians have never even seen chickenpox outside of a textbook.

To catch up, health-care providers would need to familiarize themselves with signs and symptoms they may have seen only in old textbooks or in photographs. Hospitals would need to use diagnostic tests that haven’t been routine in years. Some of those tools might be woefully out of date, because pathogens have evolved; antibiotic resistance could also make certain bacterial infections more difficult to expunge than in decades prior. And some protocols may feel counterintuitive, Offit said: The ultra-contagiousness of measles could warrant kids with milder cases being kept out of health-care settings, and kids with Haemophilus influenzae might need to be transported to the hospital without an ambulance, to minimize the chances that the stress and cacophony would trigger a potentially lethal spasm.

[Read: Here’s how we know RFK Jr. is wrong about vaccines]

The learning curve would be steep, Titanji said, stymieing care for the sick. The pediatric workforce, already shrinking, might struggle to meet the onslaught, leaving kids—the most likely victims of future outbreaks—particularly susceptible, Sallie Permar, the chief pediatrician at NewYork–Presbyterian/Weill Cornell Medical Center, told me. If already overstretched health-care workers were further burdened, they’d be more likely to miss infections early on, making those cases more difficult to treat. And if epidemiologists had to keep tabs on more pathogens, they’d have less capacity to track any single infectious disease, making it easier for one to silently spread.

The larger outbreaks grow, the more difficult they are to contain. Eventually, measles could once again become endemic in the U.S. Polio could soon follow suit, imperiling the fight to eradicate the disease globally, Virginia Pitzer, an infectious-disease epidemiologist at Yale, told me. In a dire scenario—the deepest depths of the abyss—average lifespans in the U.S. could decline, as older people more often fall sick, and more children under 5 die. Rebottling many of these diseases would be a monumental task. Measles was brought to heel in the U.S. only by decades of near-comprehensive vaccination; re-eliminating it from the country would require the same. But the job this time would be different, and arguably harder—not merely coaxing people into accepting a new vaccine, but persuading them to take one that they’ve opted out of.

That future is by no means guaranteed—especially if Americans recall what is at stake. Many people in this country are too young to remember the cost these diseases exacted. But Edwards, who has been a pediatrician for 50 years, is not. As a young girl, she watched a childhood acquaintance be disabled by polio. She still vividly recalls patients she lost to meningitis decades ago. The later stages of her career have involved fewer spinal taps, fewer amputations. Because of vaccines, the job of caring for children, nowadays, simply involves far less death.

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Donald Trump has said, at different times, that he will pardon some, most, or even all of the January 6 insurrectionists. He’s also said at least once that he would do this on his first day in office, which is imminent. Given Trump’s past rhetoric about the incident (calling it a “day of love”) and the people who were jailed for acts they committed that day (“political prisoners,” “hostages”), his pardons can be understood only as part of his alarming—and alarmingly successful—attempt to rewrite the history of the day that nearly brought down our democracy. But what if the pardon were to come in a different spirit? That could move the country a long way toward healing.

In this episode of Radio Atlantic, we invite the author and scholar Linda Kinstler to talk about a centuries-old legal theory, embraced at calmer times in American history, of “oblivion.” When two sides have viciously different experiences of an event, how do you move forward? You do a version of forgetting, although it’s more like a memory game, Kinstler says, “a kind of collective agreement about how you’re going to move past something that is fundamentally irreconcilable.”

The following is a transcript of the episode:

Hanna Rosin: What if President Joe Biden had pardoned the January 6 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’s said he’ll pardon them on his very first day in office, which is just in a few days.

Donald Trump: 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.

Rosin: Right. So why would Biden do that, again?

[Music]

Rosin: I’m Hanna Rosin. 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 6 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 Kinstler 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.

[Music]

Rosin: Linda, welcome to the show.

Linda Kinstler: Thank you for having me.

Rosin: 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?

Kinstler: 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—namely, that it’s right across from the Capitol and overlooks the grounds upon which all of these crimes happened. And 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 you could see in the monitors in the courtroom, and you could see that they were all playing January 6 footage.

[Crowd noise from January 6]

Kinstler: You know, different angles. You could hear the sounds of the footage that the prosecuting attorneys had assembled.

[Crowd noise from January 6]

Man: [indistinguishable] We’re trying to make our way through all this.

Kinstler: 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.

[Crowd noise from January 6]

Man: We need to hold the doors of the Capitol.

Rosin: 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.

Kinstler: 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.

[Crowd noise from January 6]

Man: [indistinguishable] We’ve lost the line. We’ve lost the line. [indistinguishable] Get back.

Rosin: And did you feel—how did you feel in that moment? Did you feel like, Oh, there’s some injustice being done? Or not quite that?

Kinstler: No. I mean, I think this is justice, right? This is actually the levers of justice working. 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 ur-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 6 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 6 threatened to, kind of, the fabric of democracy? Those are two separate questions, I think.

Rosin: 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.

Kinstler: Correct.

Rosin: Yeah. Okay.

Kinstler: Right. And there’s, in general, been an overreliance, I think, upon the legal process to deal with January 6 for, quote-unquote, “us”—for us, the public—in a way. And I don’t think there has been a broader conversation about what it means in the long haul.

Rosin: 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.

Announcer: Ladies and gentlemen, please rise for the horribly and unfairly treated January 6 hostages.

[Recording of “Justice for All” by the J6 Prison Choir]

Rosin: And the way he puts it is that the J6ers were treated unfairly, persecuted by the justice system; they’re hostages. He’s said this in many different ways, with many different degrees of passion throughout the course of his campaign.

Trump: 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.

Rosin: What do you think of that argument, and how does that fit into what you are saying?

Kinstler: Yeah. On the face of it, what they are doing is manipulating historical terminology, right, for their political ends.

Rosin: So you don’t think they were unfairly—your argument is not at all that they were unfairly persecuted.

Kinstler: 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 facing jail time, but I don’t think that’s the conversation we’re having right now.

But I do think what this question raises is the fact that Trump himself has not been held accountable for what he did on January 6, right? And there were many efforts to do that. And my view of this whole process is that, historically speaking, we’re doing it 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 movement—who are being the ones hauled into court. And, obviously, we have seen: The efforts to prosecute Trump himself have sequentially collapsed and now are almost certainly not going to happen.

Rosin: 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?

Kinstler: 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 prototypical example comes from ancient Athens after the reign of the Thirty 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 Thirty. But the Thirty Tyrants themselves were made to choose between standing trial and exile from the city.

So in that case, you have this prototype of the people who are responsible having to account for their crimes—verbally and in, you know, a kind of legal system—while the lower level of people were offered a different set of choices.

And, of course, the reason this is so fascinating is because this becomes the blueprint for centuries of leaders after that: 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, in our country, we are going through something like this, in a sense.

Rosin: 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 this 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?

Kinstler: Right. So yes, of course. Saying denazification didn’t work is a huge, sweeping claim, and we can argue about that a lot. But what you had there was the Nuremberg trials—of course, what we think of as Nuremberg—did hold 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 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 Shklar said, which was that 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.

Rosin: 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.

Kinstler: Totally. And it feels good. It appeals to all of our liberal sensibilities about how order and justice are supposed to work.

Rosin: 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.

Kinstler: Exactly. We are in a very legalistic society, in that we like to talk about courts and legal cases as 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, of course, that the legal system is just not capacious enough to do that for many reasons.

Rosin: That’s a really interesting and concise way of looking at it. We have been relying on Jack Smith, the cases against Trump, these January 6 cases, of which there are, you know, 1,500. What’s the gap? What does the legal strategy leave out?

Kinstler: I mean, so much, in that it’s just a legal strategy, right? It doesn’t—and I think 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 a wider understanding of what happened that day because it has become this 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? Etcetera, etcetera. You get lost in all these details and all these individual cases. And, of course, this is the role of historians, 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 event? How do you protect it from manipulation, particularly when the person who’s about to be inaugurated has been one of its kind of manipulators in chief? And I do think there are answers.

Rosin: Okay. Let’s just ground ourselves in the moment we’re in. (Laughs.)

Kinstler: (Laughs.)

Rosin: Let’s say, on day one, Trump does what he has many times said he’s going to do: pardon the J6ers.

Trump: I’m going to be acting very quickly.

Kristen Welker: Within your first 100 days? First day?

Trump: First day.

Welker: First day?

Trump: Yeah. I’m looking first day.

Welker: And issue these pardons?

Trump: These people have been there—how long is it? Three or four years?

Rosin: Is it possible that it accomplishes any of the goals of putting this to rest? Like, any of the goals of reconciliation?

Kinstler: 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 6 offenders—and by no means all of them—if they had been the ones to pardon them.

Rosin: 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?

Kinstler: Well, I think, first of all, historically, pardons have been almost a routine thing that any new ruler or president has done upon taking office.

Interviewer: Are you glad that you pardoned those people that went to Canada, the draft evaders?

Jimmy Carter: Yes, I am.

Interviewer: Why?

Carter: Well, it was a festering sore and involved tens of thousands of young men.

Rosin: 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 6ers were violent rioters. But it must have been hurtful to a lot of people whose children, or who they themselves, went to Vietnam, didn’t want to. And it was quite controversial. So to what end does a new president pardon people?

Kinstler: Well, I mean, on the face of it, it’s a gesture of goodwill. But it’s supposed to say, We are all subject to the law, and let’s start on the right foot, etcetera, etcetera.

Rosin: So it sets a national mood.

Kinstler: Yeah.

Rosin: 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.

Kinstler: Yes.

Carter: 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.

Gerald Ford: 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.

Rosin: I was looking for historical precedent and read about George Washington and the Whiskey Rebellion, because that was a fairly violent rebellion—and it was hundreds of people—and he pardoned some of them. And I was wondering if that was analogous.

Kinstler: Yeah. 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?

Ford: 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 [sic] to pass unimproved, it may never be possible afterwards to recall.”

Kinstler: 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.

[Music]

Rosin: 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.

[Music]

[Break]

Rosin: Linda, you have researched and written about what’s called “an act of oblivion.” Can you lay out the basics of what that is?

Kinstler: 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 kingly edicts that were issued in the aftermath of revolutions, wars, and uprisings. And what they were, essentially, is a kind of resetting of the legal order, where they said—and this is generally happening in the, quote-unquote, “Western world,” but we also see similar measures elsewhere.

But what they would say is: Everything that happened prior to this law—whatever it was, whether hostility, war, killing, theft, etcetera—none of that can be litigated or spoken of, quote, “in public,” which often meant: You can’t bring a lawsuit after this measure is passed.

Rosin: So it’s not actual forgetting. It’s like a public declaration that we shall all forget together.

Kinstler: Right. And in some ways, forgetting isn’t even the right word. And the interesting thing to me is that 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? And 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 are democracies.

But, yeah, forgetting is, 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 fundamentally irreconcilable.

Rosin: Got it. It’s almost a funny word. Like, I’m gonna blast you into oblivion. It’s a very powerful word. I don’t know if it was meant as kind of campy—probably not—by the Romans. (Laughs.) But there is something kind of, like, huge about it, you know?

Kinstler: Yeah. Oblivione sempiterna: “eternal oblivion,” to kind of wash away everything. It’s a totally beguiling word, and it kind of connotes erosion, in English, and erasure. But there’s also, in other languages: in Russian it’s вечное забвение, “eternal oblivion,” right? Eternal forgetting, in a way.

Rosin: So it’s almost so grand and big that it’s not connected to the mundane act of, Oh, I forgot my keys.

Kinstler: (Laughs.)

Rosin: Like, it’s almost so big that it’s on a grand, national scale. Maybe it’s something like that.

Kinstler: Yeah, I mean, 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, Okay, you’re burying it, but you’re not forgetting where it is, right?

Rosin: Right.

Kinstler: It’s always there.

Rosin: So what’s the difference between what you just described and whitewashing, revisionist history—sort of what we’ve seen happen with January 6 and Trump calling it a “day of love”?

Trump: But that was a day of love from the standpoint of the millions—it’s, like, hundreds of thousands—

Rosin: Like, sort of actively describing it as something it wasn’t. Can you compare those two modes?

Kinstler: Yeah. I would say they’re kind of fundamentally opposite, right? One is constructive, and one is malignant, right? Which is not to say that the two couldn’t be conflated. But for the sake of argument, the oblivions I have been looking at have been kind of, like, ideal types. 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 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 6. Usually, I think, if we were to 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 6ers 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 lower-level offenders, that some of them would not have had to explicitly, as a kind of gesture of goodwill.

Rosin: A couple of challenges I can think of to using this approach with January 6: 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—I mean, if you’re a prosecutor working in the federal courthouse, this is a gift. 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. I did this—me. Nobody else did this.

Kinstler: Yeah.

Rosin: Literally, that’s what some of them say because they’re proud in that moment.

[Crowd noise, chanting from January 6]

Man: Whatever it takes. I’ll lay my life down if it takes. Absolutely.

Rosin: And then—I mean, there’s footage from everywhere.

Kinstler: Yeah.

[Crowd noise, overlapping screaming from January 6]

Rosin: So since you are talking about historical examples: What do you do with an era in which everything is über-documented?

Kinstler: Yeah. And it’s actually interesting. I was in a couple of trials where the judge, to the prosecutor, was saying, Listen. I’ve been to so many of these trials. You do not need to establish for me what happened on January 6 writ large. Like, I get it. Can you please fast forward?

But I guess what I’m talking about is not even about, Oh, you know, 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.

Rosin: 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 on the radio, if I watch that A24 movie that’s a documentary about January 6, it’s, like, right there all over again, and you just have to be, maybe, aware that that’s the age we live in.

Kinstler: Right.

Rosin: 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. 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.

Kinstler: Oh my gosh, absolutely. This is what fascinates me, precisely because we are in this era of, kind of, historical revisionism, and we have been in 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 totally wiped out the legal order, so we needed to do this extremely drastic thing if we were to 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—acts 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.

Rosin: 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—

Kinstler: It meant that they couldn’t be ostracized, essentially. 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 very local, proximate question of, like, We’re not going to kick you out unless you want to be kicked out. That kind of thing.

Rosin: So you could imagine that kind of thing would be controversial at first. 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.

Kinstler: Yeah. And, I mean, there are a lot of failed oblivions. 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.

Rosin: Okay. So let’s move to the current moment. If you were King Linda—

Kinstler: (Laughs.)

Rosin: So is what you would want an act of oblivion around January 6?

Kinstler: No. No. Because I would never be so bold as to say that. But I do think it’s 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.

Rosin: Okay. So you’re not going all the way to saying, you know, an act of oblivion. But you’ve started to eke 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 in the spirit of oblivion?

Kinstler: Yeah. I think that would have been a really potentially transformative thing to do, because 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, it shows how volatile it is and how manipulable.

And I think there’s been this debate about how to memorialize that day, 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.

Rosin: 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 how we’ll remember it 10, 20 years from now.

Kinstler: Yeah. I mean, I was at the Capitol for the year anniversary of January 6 and watched all the ceremonies from the press gallery. And it just struck me how it was almost like a kind of nothing. You know, like how it was—

Rosin: What do you mean?

Kinstler: It was just so quiet, somber, of course. But there was no fan—you didn’t get the sense of the enormity of the event that was being consecrated, right? And it was almost like—and understandable because it was so close and so terrifying—there was this sense that we haven’t figured this out yet.

William Hungate: The Subcommittee on Criminal Justice of the House Committee on the Judiciary today welcomes the president of the United States, Gerald R. Ford.

Ford: 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 and whatever ways evil has operated against us.

[Music]

Rosin: This episode of Radio Atlantic was produced by Jinae West and edited by Claudine Ebeid. It was engineered by Rob Smierciak and fact-checked by Sara Krolewski. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.

I’m Hanna Rosin. Thanks for listening.

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