A Tradition Interrupted? Transitional Justice and the Presidency in Contemporary Politics

Ruti
Teitel’s Presidential
Visions of Transitional Justice (hereafter PVTJ) offers a
timely and provocative account of how American presidents have engaged in
practices of acknowledgment, contrition, and repair in the aftermath of
conflict or state-inflicted harm. The book’s central claim regarding the
presidential role in transitional justice—that presidential involvement in
transitional justice is part of a repertoire of constitutional and political authorities—takes
on particular resonance when viewed against the recent rejection of such
politics by the Trump administration (2-3). Teitel situates President Obama’s
well-known gestures of acknowledgment toward foreign audiences (i.e., the
“apology tour”) not as idiosyncratic choices, but as part of a longer tradition
through which presidents attempt to mend damaged relationships abroad. Yet the
stark partisan backlash against these practices raises difficult questions
about whether the presidency still possesses the structural and political
capacity to engage in transitional justice. This review assesses Teitel’s
analysis and explores how contemporary polarization, weakened rule-of-law
norms, and diminished interbranch cooperation complicate the very practices she
identifies.

PVTJ makes a notable contribution by
excavating the historical and constitutional foundations of presidential
transitional justice. Teitel argues that presidents, as the nation’s “chief of
state” in foreign affairs, have long exercised a distinctive role in addressing
the aftermath of conflict, wrongdoing, or systemic injustice.  The roots of
this role are grounded in the president’s authority in foreign relations (33)
and in the pardoning power, which early constitutional commentators—most
notably Alexander Hamilton—saw as an essential tool of statecraft (77).  Clemency, in this conception, was not solely an
instrument of mercy but a mechanism for reconstructing political communities
fractured by rebellion, war, or policy failures. Teitel’s reading of executive
clemency thus provides the legal and normative architecture for understanding
why transitional justice might be expected to emerge from presidential, rather
than legislative or judicial, initiative.

The
history of pardon practices supports Teitel’s claim that clemency is
foundational to presidential transitional justice.  George Washington’s pardons following the
Whiskey Rebellion exemplify the Hamiltonian idea that forgiveness could
reintegrate dissenting factions and help stabilize the new republic.