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This week, House Republicans created a select subcommittee to investigate the January 6, 2021, attack on the Capitol and uncover the “full truth that is owed to the American people,” Speaker Mike Johnson said. Presumably this is a “truth” that somehow fell outside the frames of the thousands of videos taken that day that showed rioters storming the building and beating police officers with whatever weapons were at hand. Despite January 6 being an extraordinarily well-documented crime, many Republicans seem intent on whitewashing what many federal judges, jurors, and really any average American citizen can see with their own eyes.

In the past year, I’ve gotten to know many J6ers well. My partner, Lauren Ober, and I made the podcast We Live Here Now. The thing they had all been waiting for are the pardons that President Donald Trump delivered as promised “on day one.” Trump kept his promise. Hours after being sworn in, he gave clemency to more than 1,500 people convicted of involvement at the Capitol that day. Among them were some longtime militia leaders who carefully planned the riot. Now they’re free. For some, this is order restored; for so many other Americans, this is lawless abandon. And not everyone is reacting to the pardons the way you might expect.

The following is a transcript of the episode:

Marie Johnatakis: Hello?

Hanna Rosin: Hey, this is actually Hanna Rosin. I’m calling on my son’s phone for various reasons.

Johnatakis: Hanna! How are you?

Rosin: You sound happy.

Johnatakis: I am. I just got done bawling.

Rosin: Bawling. As in crying. Hard.

Johnatakis:  I think everything just came out. I was just holding it in for the last how many years?

Rosin: That was Marie Johnatakis, whose husband, Taylor, was just pardoned by President Donald Trump. He’d been sentenced to over seven years for what he did at the Capitol on January 6. Now he’s coming home.

This is Radio Atlantic. I’m Hanna Rosin.

A few hours into his second term, Trump pardoned more than 1,500 people charged in connection with the attack on the Capitol on January 6, 2021. Some had been charged with serious felonies, like assaulting police officers and seditious conspiracy. Others were charged with misdemeanors, like trespassing and disorderly conduct.

I’ve gotten to know a lot of January 6ers over the last couple of years, so I know how these prosecutions have upended their lives. And I know that for a lot of them, the pardons have restored their sense of justice. For them, this week feels like the world is set right again.

And as I checked in with them this week, and hung out outside the D.C. jail, mostly I just saw the chasm more clearly: how one person’s order restored is another person’s lawless abandon.

Johnatakis: I know this is going to sound crazy, but I have just really felt like Trump will do what he says he’s gonna do. And so, ever since that, I was like, “Well, if Taylor gets pardoned, it will be the first day.”

Rosin: Three weeks ago, when her world was still in chaos, Marie Johnatakis bought a one-way ticket home for Taylor. Trump had mentioned that he might pardon all the January 6ers, but you could never be sure. Politicians don’t usually do what they say, her daughter told her. And for a family whose only working parent had been in jail for more than a year, an airline ticket is a luxury.

But Marie had watched the video over and over of Trump telling an NBC reporter that he would pardon the J6ers on day one of taking office.

Donald Trump: We’re gonna look at everything. We’re gonna look at individual cases—

Kristen Welker: Everyone?

Trump: Yeah.

Welker: Okay.

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

Welker: Within your first 100 days? First day?

Trump: First day.

Welker: First day?

Trump: Yeah. I’m looking first day.

Welker: You’ll issue these pardons.

Rosin: And then on day one, the world flipped.

Man: First we have a list of pardons and commutations relating to the events that occurred on January 6, 2021.

Trump: Okay. And how many people is this?

Man: I think this order will apply to approximately 1,500 people, sir.

Trump: So this is January 6. And these are the hostages, approximately 1,500 for a pardon. Full pardon.

Rosin: On Monday night, just before midnight, Marie finally picked Taylor up from prison, and she sent me a picture. They sat side by side, smiling, like a late Christmas-card photo. Marie hasn’t sat side by side with her husband since he was taken into custody just before Christmas 2023.

I asked her if she thought his transition home would be rocky, and she said no—it’llbe seamless. Taylor has written each of their five children a letter a week from prison, and he sometimes reads them books over the phone. In her mind, family harmony will be quickly restored, and so will the rightness of all things.

Johnatakis: I mean, this started with January 6, four years ago, and we were the scum of the Earth. We were domestic terrorists. We were people that you were supposed to be afraid of. Every time Trump had anything with criminal charges or anything like that, he has really been our hope for anything that would ever mean a pardon for us. And so a lot of us feel like it was one miracle after another.

And people don’t look to Trump—people in the movement on the chats that I’m on and stuff like that don’t look to him like a savior. But I think a lot of the people—almost everyone has faith, like a faith in God, a faith in Jesus. And I do hear a lot of like, for us, it’s a miracle.

Rosin: There is a whole other way that these pardons could have rolled out.

A little more than a week before inauguration, Vice President J. D. Vance made it clear to Fox News that he wasn’t expecting blanket pardons.

J. D. Vance: If you committed violence on that day, obviously you shouldn’t be pardoned. And there’s a little bit of a gray area there, but we’re very much committed to seeing the equal administration of law.

Rosin: During the transition, I spoke with Republican lawyers who imagined there might be some kind of review board, like maybe a Justice Department committee that would evaluate cases such as Taylor’s.

Taylor was not among the several hundred convicted solely of misdemeanors, such as trespassing or disorderly conduct. But also, he was not among the small handful convicted of seditious conspiracy. His assault charge hung on the fact that he was yelling into his bullhorn, urging a crowd to push a barricade into a row of cops. All captured on video.

Taylor Johnatakis: One foot! One, two, three, go!

Rosin: And under the J. D. Vance scenario, there would have been qualified lawyers debating in a room about degrees of “assault” and what length of sentence they merit. But instead, Trump chose to go with a blanket pardon, which sounds uncomplicated but actually brings maximum chaos.

Tuesday night, I was walking down my own street past a house that I know well. It’s a kind of safe house for January 6ers. Micki Witthoeft lives there. She’s the mother of Ashli Babbitt, who was killed at the Capitol that day. So does Nicole Reffitt, whose husband, Guy, was sentenced to over seven years for bringing a gun to the Capitol. Occasionally, a young January 6er named Brandon Fellows stays there too.

My partner, Lauren Ober, and I got to know the people in that house last year when we made an Atlantic podcast about it called We Live Here Now. I’ve walked by their house hundreds of times. But when I walked the dogs past the house on Tuesday in freezing weather, I saw Brandon outside, wearing an ICE jacket—as in Immigration and Customs Enforcement. This is his version of a sartorial troll.

Rosin: So what’s going on? I guess I don’t even know the basics of what’s going on.

Fellows: Last I heard was from Jen. We were at lunch with Stewart Rhodes—breakfast with Stewart Rhodes today.

Rosin: He’s here?

Fellows: Yes. But we’ve all been up, and he’s taking a nap real quick. So we just got back, but—

Rosin: Is he staying here?

Rosin: I froze—and not from the cold. Stewart Rhodes, the guy with the eye patch, who founded the Oathkeepers. He for years recruited and cultivated an armed militia to resist government tyranny. His estranged ex-wife recently said she fears that she and their kids are on his quote “kill list.” Rhodes’s attorneys have said that the idea that his family’s in danger is unfounded.

Before Trump’s commutation he was serving an 18-year sentence for seditious conspiracy, one of the longest of all the January 6ers. Now Stewart Rhodes was taking a nap down the block from my house.

[Music]

More on that after the break.

[Break]

Rosin: While Rhodes was napping in her house, Nicole Reffitt, was outside, being interviewed by a Dutch news crew. Her family is notorious, because her son, Jackson, turned in his father to the FBI. Someone adapted the trial transcript into an excellent play called Fatherland. Anyway, this week her husband, Guy, was about to get out of prison. But unlike Marie Johnatakis, she seemed unsettled about the pardons.

Rosin:  How do you guys feel about the blanket pardon?

Reffitt: You know, I was never a fan of that. I guess he thought it was the quickest way—pull the Band-Aid off. I was more in favor of commutations and then let’s look at everything, because not only did people do bad things that day, but there were some charges that were absolutely wielded like a weapon against people. And those things also need to be looked at because, you know, I don’t want anyone to have to go through this. And that’s my biggest concern.

Rosin: What do you mean “concern”? Like, I don’t know how to think about the blanket pardon either, Nicole. I’m trying to think what’s the difference between this and if it had gone a different way—what does it mean that it’s a blanket? Have you guys talked about that?

Reffitt: Well, because now all charges are gone.

Rosin: Yeah.

Reffitt: You know, and, uh, I’m a law-and-order gal, really. And so not all charges should be gone there. People did really bad things that day.

Rosin: In many people’s minds, Nicole’s husband, Guy, was one of the people who did really bad things that day, and he did get a fair sentence. Guy brought a gun to the Capitol, although he didn’t enter the building or use it.

Reffitt: Yeah, I never expected him not to have something, you know, like, I figured he’d be charged with something, because it was so significant, but it was just so over-the-top to me, all of the charges and that has always been my biggest issue.

[Crowd chanting]

Rosin: As of Wednesday only eight of the 22 people held at the D.C. jail had been released. But outside the jail had turned into a gathering place for people released from all over the country. Camera crews stood around from Sweden, Japan, Norway broadcasting interviews with the newly freed. And when Bob Marley’s “Redemption Song” came on the speakers, the crowd belted it out together.

[Sound of “Redemption Song” by Bob Marley]

Rosin: On Tuesday night, I caught a glimpse of Stewart Rhodes at the edge of the crowd. He’s hard to miss, with the eye patch. He was giving an interview to a right-wing YouTuber.

Stewart Rhodes: It’s a day of celebration. I mean, yesterday it was too. When President Trump was inaugurated, it was awesome. You know, like he said himself, you know, God saved him to save America, and I believe that’s true. And then he turned around and saved us last night, I mean, and restored us to our freedom. I mean, I’m not 100 percent restored yet. I’m still waiting for a pardon, but it’s so, so wonderful to be out, be out of these bars.

Rosin: That’s Rhodes’s one big complaint—that he’d been given a commutation instead of a pardon. A commutation can erase a sentence, but it does not restore all your rights, such as the right to buy guns. He told the interviewer he was applying for a pardon. He said, “ I think everyone deserves a pardon, without any exception.”

Rhodes: No one got a fair trial. It’s impossible to get a fair trial here if you’re a Trump supporter. And so you don’t have an unbiased jury, an impartial jury; you don’t have an impartial judge; you don’t have a jury that’s going to hold the government to its standard beyond reasonable doubt.

It’s not going to happen. So if you have no chance of a fair trial, then you should be presumed innocent. That’s put back in your natural state, which is an innocent and free human being.

Rosin: So that’s Rhodes’s version of history. They were sham trials. It was actually a day of peace. It’s a revision of history that Trump and his allies are likely to try to push and push for the next four years. House Speaker Mike Johnson has already formed a select subcommittee on January 6, to quote “continue our efforts to uncover the full truth that is owed to the American people”

But for a whole crew of other people involved in January 6, these pardons represent a reversal of justice.

January 6 did not require delicate forensics. It has to be one of the most well-documented crimes in modern history. There are tens of thousands of hours of video showing rioters beating up police with whatever tools are at hand.

At least five people died for reasons that are in some way related to the insurrection. Some 140 police officers were injured, and many could never work again. On Wednesday, retired officer Michael Fanone had choice words for Rhodes that he expressed live on CNN.

Michael Fanone: This is what I would say to Stewart Rhodes: Go f— yourself. You’re a liar.

Anchor: We didn’t obviously to beep that word out …

Rosin: Fanone said he’s worried for his safety and that of his family.

The judge who sentenced Taylor Johnatakis, Judge Royce Lamberth, wrote a letter in connection with the sentencing. He wrote: “Political violence rots republics. Therefore, January 6 must not become a precedent for further violence against political opponents or governmental institutions.” Lamberth is 81. His wife died a few months ago. He had a handful of new January 6 cases on his docket, but of course they’ve disappeared. In that sentencing letter, he continued, “This is not normal.”

We tried to reach him to talk about the pardons, by the way, but he wasn’t ready to talk about them yet.

 Reffitt: My husband’s being processed out of Oklahoma right now. Can’t wait to see that man. He will be here in D.C. tomorrow. And you know what? We’re getting freedom, baby! That’s right. We’re getting freedom! We are getting freedom. And that’s absolutely right.

Rosin: At the Tuesday-night rally, Nicole got a call from Guy. He was out. On the road. Headed towards the airport.

Reffitt: He’s in the car. He’s in a car! In a car!

Rosin: Stewart Rhodes told the crowd that he was headed back to California this week. As for Marie and Taylor, they fly home on Thursday. Marie told me the kids are gonna make dinner.

[Music]

Rosin: This episode of Radio Atlantic was produced by Jinae West and Kevin Townsend and edited by Claudine Ebeid. It was engineered by Rob Smierciak and fact-checked by Stef Hayes. 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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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.