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Elon Musk Imagined a Cover-Up

The Atlantic

www.theatlantic.com › ideas › archive › 2025 › 01 › elon-musk-england-grooming-gangs › 681339

Updated at 1:55 p.m. ET on January 16, 2025

Imagine that a foreign-born billionaire buys Facebook, asks its engineers to boost his own posts, and then introduces a payment system that rewards users for pandering to his whims and prejudices.

Also imagine that the billionaire happens across a news report on the death toll in Iraq following the allied invasion back in 2003, and links that carnage to the intelligence failures that were used to justify the war. Bristling with righteous outrage, our fictional billionaire then suggests that the state and the media have covered up this whole incendiary topic.

This was how Elon Musk sounded to many Britons after he belatedly discovered the organized child-sexual-abuse networks known as “grooming gangs.” Here was a real scandal: Networks of adult men, primarily British citizens of Pakistani descent, had trafficked and raped young girls in towns across England, over many years, aided by failures of local governments and the police. But the scandal wasn’t new, nor had reporters ignored it en masse. “You don’t hate the legacy media enough,” Musk insisted at one point during his multiday spree of posts on X, his social-media platform. Never mind that a legacy media outlet—Rupert Murdoch’s London Timesfirst broke the story of the child-sex-abuse ring in Rotherham, 14 years ago.

[Ali Breland: Elon Musk has appointed himself king of the world]

Musk’s horrified reaction to the scandal, which appears to have been prompted by a viral post on New Year’s Eve, is entirely justified. However, it comes quite late, and demonstrates his usual self-centeredness: His thinking seems to be that if he didn’t hear about the scandal during the 2010s, then surely no one else did, either. His ownership of X, and his alliance with Donald Trump, gives him the power to force any issue he likes into the political conversation. Lately he has used that power to intervene in European politics, berating British Prime Minister Keir Starmer, boosting the German far-right Alternative für Deutschland, and attacking the European Union for its efforts to regulate his businesses. Starmer’s opponents on the right, including the Conservative leader Kemi Badenoch, have been quick to echo Musk’s interest in the grooming gangs—even though Badenoch’s party was in power as the story originally unfolded.

The Times reporting kicked off dozens of prosecutions, multiple public inquiries, and even a primetime British Broadcasting Corporation drama. The story was well known enough that one of the police whistleblowers appeared on a celebrity reality-television show in 2018. The news even reached America: In 2014, the New York Times columnist Ross Douthat observed that “what happened in Rotherham was rooted both in left-wing multiculturalism and in much more old-fashioned prejudices about race and sex and class.” The ethnicity of the perpetrators mattered, he argued, but so did the status of the victims—working-class girls whom the police saw as “‘tarts’ who deserved roughly what they got.”

Musk’s newfound revulsion at the details of the abuse is entirely justified—read the sentencing reports if you have the stomach for it. “Girls were raped callously, viciously, and violently,” the judge told nine men convicted of grooming offenses in the northern towns of Oldham and Rochdale in 2012, adding, “Some of you acted as you did to satiate your lust, some to make money out of them. All of you treated them as though they were worthless and beyond all respect.”

The sexual abuse of children occurs in all human societies, but the forms it takes are culturally dependent. Like school shootings in the United States, grooming gangs are a particular type of crime that emerged from the laws and social conditions of a specific time and place. The gangs are not representative of the whole picture of what researchers call “group-based child sexual exploitation”—a phenomenon that in Britain appears to be dominated by men who are white, as you would expect from the makeup of the population. (England and Wales are more than 80 percent white, census data show; “Asian ethnic groups” are about 9 percent of the population.) Most grooming-gang defendants in the cases that have attracted media attention, however, were men of Pakistani descent. Many were connected to the nighttime economy, such as by running minicab firms and delivering takeout. They primarily targeted vulnerable girls—runaways or those who lived in foster homes. We know all this because of extensive reporting, testimony by victims and whistleblowers, and the bravery of politicians such as Ann Cryer and Sarah Champion, two Labour Party members of Parliament who were shunned by their own side for speaking out.

[Ali Breland: Elon Musk’s X endgame]

It is entirely reasonable to ask why they were shunned. In the 2000s and early 2010s, the racial dynamics of the grooming gangs made English towns extremely reluctant to face what was happening. Local South Asian communities were afraid to report the perpetrators in their midst. Police did not record complaints or investigate the issue actively; by some accounts, race riots in Oldham in 2001 made police emphasize “community cohesion” over what should have been their primary concern—dismantling organized-rape gangs regardless of the demographics of the perpetrators. White members of municipal councils fell into a pattern of assuming that problems among British Pakistanis were best left to their fellow councilors from that community. “Rotherham isn’t a very PC place, I think that is why the council overcompensated too much,” one local officer told an investigator in 2015. “It doesn’t want to be accused of being racist.”

Living through this story, experiencing the slow accretion of details and convictions and inquiries in real time, clearly felt very different from learning about it all at once. One of the main complaints to have surfaced since Musk reheated this story is that much of the original coverage was piecemeal and overly restrained: Had gangs of white men been trafficking immigrant women, it might have prompted a reckoning comparable to America’s protests over the 2020 murder of George Floyd. What qualifies as a “reckoning” is arguable—but I agree that the left would have raised hell about such a story, as the right has done with this one.

In response, some commentators, on both the left and right, have called for a “national conversation” about the gangs. What that conversation would sound like, however, is the tricky part. Would it include calls for the mass deportation of migrants, as many on Europe’s emergent right want? Is the answer militant secularization of Britain? Or a renewed insistence that the United Kingdom is a Christian country? Should Britain enact a “Muslim ban” or reject asylum seekers from Muslim-majority countries? When liberals are still queasy about engaging with this topic, it’s because they sense that these shadow arguments lie just out of sight.

Although Musk is powerful enough to draw new attention to the Rotherham scandal, polling suggests that most Britons see his interventions as opportunistic. The X owner has a deep animus toward Starmer, the Labour prime minister, whom Musk sees as an enemy of free speech in general and of his platform in particular. Many of Musk’s posts called for implausible scenarios such as the King dissolving Parliament or the country holding fresh elections, adding to the sense that Musk had not deeply researched the topic before picking up his phone to post.

Nonetheless, the Conservative opposition, led by Badenoch, pandered to him, demanding a fresh national inquiry to “join the dots.” That reverses the Tory position of a year ago—back when the party was in power and had the ability to commission whatever inquiries it deemed necessary. (In 2019, the future Prime Minister Boris Johnson said that investigating historic sex abuses was money “spaffed up a wall.”)

Badenoch’s decision to echo the Musk line also minimized the work that the Conservatives did do in government to tackle rape gangs. Former Prime Minister Rishi Sunak created a “grooming gangs task force” that has helped police make more than 550 arrests. The Tories also accepted that some sentences given to gang members had been too lenient, and proposed to create a new aggravating factor in sex offenses involving grooming. That will likely be included in the Crime and Policing Bill this spring, alongside a mandatory-reporting measure requiring social workers and others to notify police when they suspect children are being abused. Despite all that progress, Badenoch understands that calling for a new investigation is one of the few ways for an opposition leader to attract attention. (Today, Labour caved and promised a “rapid audit” and more funding for local inquiries.) Just as the activist left sometimes refuses to believe that civil-rights victories have been achieved—remaining instead in a state of politically lucrative perma-war—so the right will not claim victory in having already forced Britain to take these gangs seriously. Conservatives want the fight, not the win.

[Read: He’s no Elon Musk]

Intriguingly, Britain’s other right-wing party, Reform, has been less harmoniously in tune with Musk in the past couple of weeks than the Tories have. Reform’s leader, Nigel Farage, has joined Badenoch in calling for a new nationwide inquiry into the gangs. But he has refused to fulfill a peculiar demand from Musk: to normalize the pseudonymous agitator Tommy Robinson, whom the far right credits for making the grooming scandal public. Robinson, whose real name is Stephen Christopher Yaxley-Lennon, is not a folk hero. A founder of the xenophobic English Defence League, he risked collapsing one of the grooming trials by filming the defendants outside it. He is also a convicted mortgage fraudster and is currently in jail for contempt of court in a different case.

Robinson badly needs mainstream support to shake off his thuggish reputation, and Musk has taken up his cause. “Free Tommy Robinson!” Musk declared on X. He also faulted Farage—who has sought to keep racist “bad apples” out of Reform—for distancing himself from Robinson. Farage “doesn’t have what it takes,” Musk complained. Once again, the billionaire seemed out of touch with the British political scene: Farage, a key champion of Brexit, is the most successful leader that the British populist right has ever had. Reform won more than 4 million votes in last year’s election and looks set to make big gains in local contests in May.

To many Britons’ relief, Musk seems to be moving on to other subjects, including the California wildfires. His intervention has presented liberals with a difficult terrain to navigate. Yes, his interest was opportunistic. Yes, he spread conspiracy theories as well as the true scandalous details. But at least part of his instinctive reaction was correct: This was and is a scandal that shames Britain, as the Times asserted in 2012. It just isn’t a hidden one, thanks to the many victims and whistleblowers who have brought it into the open , beginning more than a decade ago. They deserve the tribute of having their bravery acknowledged.

January 6 and the Case for Oblivion

The Atlantic

www.theatlantic.com › podcasts › archive › 2025 › 01 › january-6-oblivion-trump-biden-pardon › 681332

Subscribe here: Apple Podcasts | Spotify | YouTube | Overcast | Pocket Casts

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.