Radical Accountability or Nothing
Donald Trump, Sedition, and Who America Loves
I had a moment when I watched Shaye Moss walk to the witness chair before the January 6th Committee this past Tuesday when I felt the breath leave my body.
As she walked to that chair, her trauma was palpable– written all over her face, carried in her body, held within her and all around her notwithstanding the tremendous courage of her countenance.
She is a woman who, along with her mother and her grandmother, bore the direct assault of the President of the United States and his people in their attempt to overthrow American democracy. Barraged with lies, and targeted first by Trump and his inner circle and then by his racist army of lackeys around the nation, Shaye Moss and her mother and grandmother were threatened and assaulted, their homes invaded, and their safety, such as it is for Black women in America, destroyed.
You could see it, in the tremble of her shoulders and in the carriage of her frame, what those men had done. You could feel it. It was right there on the surface of Shaye Moss and her mother, and it spoke volumes even in silence.
Before even a single word was uttered, tears were streaming down my face. For me, it was impossible to watch Shaye Moss and not feel the weight of all of it, the burden of the harm that she and her mother and her grandmother were forced to carry and will carry with them forever, merely for doing the work of democracy, for the service of counting votes that helped to depose a white supremacist president.
Black women bear and have borne so much harm in this country. Here again, in real time, we witnessed the destruction of the security of three generations of Black women for the sake of preserving white male power.
Trump and Giuliani’s intentional, direct invocation of threats to these women, the repeated false claims of illegal conduct, the slinging of barely veiled racist language, the invasion of Shaye Moss’s grandmother’s home by white folks seeking to make a “citizens’ arrest,” a la Ahmaud Arbery– well, let’s just call this what it was, shall we?
Trump and Giuliani led a lynch mob. They created and engendered lies to benefit their own demand for power, riled up their white supremacist base in person and online, and sent a lynch mob after these women, because their honesty and their dignity and their dedication to the work of democracy stood in Donald Trump’s way.
And Trump and Giuliani knew what they were doing. New Yorkers of a certain age know that this is but one of many, many, many examples of how their racism has cost lives and unremedied harm. From the criminal and public persecution of the Exonerated Five, to the execution of Amadou Diallo, to the police rape of Abner Louima invoking the phrase “Giulani time,” these men are notorious for their hatred of and violence toward Black people to secure and maintain their own authority.
This was not the first time by a long shot that they put Black bodies in the line of fire for the sake of their own political gain.
But it should, without question, be the last.
In the first year of law school, when you take Criminal Law, there is a window of time in which you read all the caselaw related to the policies of punishment in our system of justice. Weeks are spent on concepts like Specific Deterrence (how you scare the public into fear of individual punishment for crimes), General Deterrence (how you scare the public with the punishment of individuals for crimes), Incapacitation (putting people in prison), Retribution (prosecutorial revenge), and Rehabilitation (which doesn’t really exist as an offering in our system of justice).
It should be pointed out that research demonstrates that none of these policies actually work particularly well to deter or stop crime, or to create a safer society. Addressing underlying conditions like poverty, houselessness and addiction is a greater predictor of reductions in crime than being “tough on it.” Mass incarceration, in particular, is ineffective at reducing crime or affecting criminal behavior.
And our system of justice, like every other institution in this country, is inherently flawed and racist. It was built to serve white male slaveowners, and the impact of its focus on private property rights (including over individuals) lives in every aspect of how it functions today. Indeed, policing in this country grew out of slave patrols designed to hunt down escaped slaves and return them for punishment.
We cannot count on our criminal justice system as it currently functions to do anything equitable, ever.
For this reason– and others, because let’s be frank that since Ferguson and well before it, to Rodney King and beyond, my generation of lawyers has long known better– I am an abolitionist. This means many things, but one of the things it means is that principles of restorative justice must govern how we should address criminal conduct, and that policing must be dismantled and radically reinvisioned to change society for the better.
The five principles of restorative justice require us to look to Relationships (and how they were damaged by the criminal conduct), Respect, Responsibility, Repair and Reintegration.
There can be no justice, in other words, without accountability for the harm caused.
And we are a long way from accountability in America right now for Donald Trump and his people. A long, long way.
One of the things that has struck me about the January 6th hearings is how deep the rot goes.
State GOP officials around the nation are implicated in this seditious conspiracy.
Members of the House of Representatives are implicated.
Members of the Senate are implicated.
The RNC and its leadership are implicated.
Trump’s Department of Justice is implicated.
Trump’s ragtag group of lawyers led by Rudy Giuliani, and spouting the most insane, unjustified conspiracy theories twisted into legal arguments, are implicated.
Trump’s family is implicated.
Trump’s inner circle of advisors is implicated.
And Trump himself, at the top of the pile, as the ringleader, who knew exactly what he was doing and exactly why— he is implicated, without question.
All that was needed was for this collective of white men and women, led by their installed President, to light the fuse of the Proud Boys and the Oathkeepers and all of their white supremacist buddies around the nation, and American democracy would fall.
It was only by the skin of our teeth, by a fairly random set of coincidences and a few thin walls, that American democracy survived– and barely still, at that.
There is no doubt at this point that the evidence exists to convict Donald Trump of seditious conspiracy. Any lawyer worth their weight knows this.
18 U.S.C. § 2384 is the section of the U.S. criminal code that defines seditious conspiracy as follows:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
I’m not going to go through what I would do to prepare to try Donald Trump for this crime, but I will say that at this point it is an exceedingly easy case to make.
Donald Trump’s presence on calls to state and federal elected officials concerning the fraudulent electors scheme alone, for which there are multiple tapes, let alone his publicly known and visible conduct before, during and after the January 6th insurrection, makes plain that the evidence exists to convict him, and that it is mountainous already.
And we’re not even close to being done with the Committee’s hearings. Yet to come is documentary footage from the events leading up to the insurrection and the day itself.
Suffice it to say that Donald Trump could be indicted and arrested right now, today, if only the Department of Justice had the will.
Strangely, one of the things I spent a lot of time thinking about in the aftermath of Shaye Moss’s testimony on Tuesday was love.
Who do we love in this country?
Do we love Black women, who show up to vote for Democrats more than any other voting bloc?
Do we love Black women, who organize our democracy daily and fight for its survival?
Do we love Black women enough to say that this line that was crossed that destroyed the safety and the sanctity of the lives of Shaye Moss and Ruby Freeman is a point of no return?
Do we love Black women?
Or do we love white men so much that we’re willing to just let the most extreme violations of oaths of office and criminal law just slide on by for the sake of “politics,” or fear of accusations of “partisanship,” or in anticipation of outrageous accusations of “persecution” by violent white men who sought to bring down an entire nation, thereby guaranteeing that those same white men or others get to do it again, and again, and again?
The fact that we all know the likely answer to these questions speaks volumes about the nature of American democracy at this very moment and throughout history.
It is but one reason, and among the most significant out of many, many reasons, why this moment demands radical accountability for Donald Trump and his lackeys, and nothing less.
We owe Shaye Moss and Ruby Freeman and every Black woman who has fought for this nation and borne the brunt of its harm the dignity of radical accountability.
If Trump is not held accountable, if we do not honor the most basic of boundaries in this country that say that you cannot conspire to overthrow the government without consequence, then we are saying, again, AGAIN, that the lives of Shaye Moss and her mother and her grandmother and the legacy of the work that Black women have done in service to this democracy has no value.
Democracy, real democracy, depends on the principle that everyone has value, and everyone has worth. And the courage that is required to maintain it was on display Tuesday in the form of Shaye Moss and Ruby Freeman, and moreso than on any white male witness out of many who are still, still, voting in favor of voter suppression laws despite what their party wrought on January 6th.
This moment is an invitation to change.
Our democracy depends on those in charge looking Shaye Moss and her mother in the eye and not only saying “thank you,” not only saying “I’m sorry,” but also guaranteeing that this will never happen again.
Radical accountability for Donald Trump’s crimes is mandatory, without any hesitation, for our nation to proceed forward.
Radical accountability for everyone who participated in his conspiracy, enabled it, egged him on, voted to throw out the choice of millions even after the Capitol was invaded, and endorsed so much destruction for the sake of white power, is required.
Radical accountability, so that Shaye Moss and Ruby Freeman and the entire nation can heal.
Radical accountability, because anything less guarantees the reprisal, yet again, of all this trauma, and all this harm, and all this white violence.
Radical accountability, because this is the moment for this nation to become something better than it has ever been, and to decide, once and for all, that it is done with white supremacy.
Radical accountability, or nothing.
Right now.
One of your most powerful essays to date ECM. You described perfectly what I saw in Shaye and Lady Ruby too. The willingness to stand up even after enormous pain and trauma to speak their truth to power. To show what "real" Americans look like who do the work of democracy day in and day out. Not the fake Americans who hold powerful positions, make deals behind closed doors, who exclude others with their racism and misogyny and homophobia, who are entitled and privileged and who trample on, dismiss and devalue people like Shaye and Lady Ruby. Your essay should be in WaPo, NYT and WSJ so people can read what many in America are really thinking, not some out of touch journalist who has never engaged in street activism and lives buffeted from the daily challenges of trying to find housing or access health care. Thank you again ECM for another stinger.
Thank you once again for your brilliant writing. You put my thoughts into words, giving me a voice. Always grateful.