How to Have ‘Peaceful Transfer of Power’ AND Hold Outgoing Administrations Accountable to the Rule of Law
“The peaceful transfer of power,” that magical phrase that encapsulates what seems to have been America’s first-ever contribution to the fitful march of democracy in the story of civilization… is at the core of a question confronting liberals in Little Donald’s America: why isn’t the Justice Department going after the trumpettes (pronounced ‘trumpets’ like crumpets, not crump-ettes or trump-ettes)?
Although we use the word ‘peaceful,’ we’ve just gone through a demonstration that the opposite doesn’t exactly have to be a war, it can be a mob and just a few ancillary fatalities. Hmmm. Did we just have a peaceful transfer of power or not? Until I started writing this article, I thought we did. Seriously, I did. And the premise was to be that it’s not just about ‘peace’ but also about not taking vengeance on the prior administration; that absence of vengeance is part of the peacefulness. But the answer is painfully clear: we did not have a peaceful transfer of power. Yes, it did transfer without having to kill the prior monarch (whether in title or only in his imagination) or forcibly remove him from his throne. There was no war or revolt. That is the peaceful part that we did still seem to have. Woohoo, only five deaths, many horrible injuries, and a mock hanging.
But ‘peaceful’ also seems to imply, as I started to explain, that the incoming administration not take vengeance after taking power, on the outgoing leaders. Peaceful means not just ‘non-violent,’ but also civil, meaning answerable to ‘due process of law,’ and governed by the ‘rule of law.’
These two phrases, like peaceful transfer of power, are foundational to our democracy. (Together with “free and fair elections,” they constitute the topmost tiers of the pyramid of democratic values.) And they each have a very specific significance. Due process is a statement about the rights of those who are not rich or powerful. Rule of law, conversely, is explicitly about the rich or powerful: it means that they can’t skirt the law. You could say they are two sides of the same coin. And those two tenets are the challenge when considering accountability for those individuals in any outgoing administration. How do we ensure that they get due process of law? How do we ensure that the newly powerful don’t skirt the rule of law when pursuing charges against the outgoing administration?
I have a simple solution. Glad you asked. In matters of adjudication, it is important, but often overlooked, that guilt vs. sentencing must be two very separate things. In fact, I think there are crimes for which we might not necessarily define any punishment, monetary or loss of freedom. For instance, we might have reached that point with use of narcotic drugs. Incarceration only costs society as a whole, and monetary punishments are just a downward spiral that again costs all of society.
And separating guilt from sentencing is the key with protecting democracy from those who would cheat to stay in power. My solution is that their sentence should be loss of citizenship. They don’t have to be chased out of the country; we have plenty of non-citizens living here. But they couldn’t hold power again. We could consider giving those convicted a choice between jail time and loss of citizenship, but I think we should keep it simple. They are not mere, ordinary felons; they contravened the underpinnings of our Constitution. Jail is insufficient, on principle and in practice, because they must not have the right to vote or ever take office again. This limit on the punishment would limit the power of the newly empowered to simply inflict vengeance on the outgoing leaders. It would respect the peaceful transfer of power.
The guilt of the outgoing administration might have to be approved by the Supreme Court. Perhaps it should only be in the negative, only choosing to hear it on appeal if they so chose.
Coming soon: why the rule of law can’t be ensured by the rule of law. And, the pyramid of democratic tenets.
