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Trump’s Challenge to Democracy through the Lens of Transitional Justice  (Jonathan Hafetz, Just Security)
The dominant frame for former President Donald Trump’s effort to overturn the result of the 2020 presidential election tends to be inward-looking and imbued with notions of American exceptionalism. President Joe Biden described the 2022 mid-term elections as “a battle for the soul of th[e] nation” and is employing similar messaging for the 2024 presidential election, while analysts continue to warn that democracy in the United States is under assault in unprecedented ways. Viewed through this frame, Trump and the rise of a bellicose, authoritarian-leaning right-wing populism are a grave and unprecedented challenge to the bedrock norm of peaceful transitions of power. U.S. democracy, to be sure, has long been incomplete and imperfect, with its history of exclusions from the franchise based on wealth, sex, and race (the latter often enforced through state-sanctioned violence). Contested election results are likewise not new to the United States, as the elections of 1876 and 2000 suggest. But the principle of respecting the outcome of elections is being tested and challenged in unprecedented ways, as one major party appears to have internalized a new norm of electoral result contestation.
It is also helpful, however, to view these developments in comparative context. A growing body of legal and social science literature has documented the rising trend of democratic backsliding, defined by political scientist Nancy Bermeo as “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy.” Democratic backsliding in the United States may have distinctive attributes, given pre-existing features of the U.S. constitutional system such as the Electoral College, U.S. Senate, and other structural features that distort representative democracy. But viewed comparatively, the events surrounding the January 6 U.S. Capitol Attack reflect a larger erosion of democratic norms and setbacks to liberal constitutionalism across western countries, as Aziz Huq, Tom Ginsburg, and Mila Versteeg have observed. The experiences of democracies that have come back from the brink (or from full dictatorship) shed light on how the United States could use transitional justice tools to create a shared understanding of anti-democratic events and move forward with accountability, but only if the courts step up and play their respective constitutional role.