To be or not to be is not the question. The question is to recriminate or not. 2020 is behind us—we have that to be thankful for. 2021 looms ahead—we have that to be leery of. It’s time to look ahead, be positive, and hope for change. It’s not the time to recriminate.

What if someone accuses you of stealing his or her line in a song? Or your cheese sandwich? Or an election? What are you to do? Sometimes you accuse your opponent of refusing to compromise, and he accuses you of the same thing. That’s recrimination.

Technically, recrimination is an accusation or insult that’s hurled back at someone. Most of us have disagreed with friends, foes, strangers, or politicians. Too often those disagreements begat recriminations. Is there an ethical way to write back, rather than to recriminate?

Take the 2020 Presidential Election for example—please take it. One side won. The other recriminated. The legitimate winner was cautious, at first. The loser was bombastic, at first. The irony of losing by the same number of electoral votes the loser won four years ago was priceless. The retributive recrimination was plagued by its utter lack of ammunition. As is always the case in wars, divorces, and elections, surrogates weighed in, bearing witness to monumental ethical failure. Transparency and truth telling were victims of the 2020 post-election recrimination. The mood was sour. To hell with normative engagements and politics.

The Twelfth Amendment requires the Senate and House to conduct a joint session to “read out” the votes of the electors for president and vice president from the states and a district. The certificates by state governments will be made a part of the national record. It is a routine process. This year the staging takes place on January 6, 2020.

One hundred and thirty years ago, Congress passed the Electoral Count Act. It is a poorly written law ignored for 130 years. Constitutional scholars have been perplexed by it.[1] The losing side now asserts Congress can either deviate from it or ignore it. By any definition, an ethical dilemma. If they deviate or ignore, what happens? Another election? An appointed president and vice president? Something greater than a recrimination?

“Ignoring the Electoral Count Act altogether would create a new degree of legal peril that congressional leaders are loath to unleash.”[2]

Despite how politics are made—sausage or gruel—the entire effort is a recrimination. A majority of the electorate voted for Biden. The electoral college gave its approval. The House and Senate are certain to reject the uncertainty and accept the vote of the people and the decision of the electoral college. The question is, have we become so partisan that pure recrimination finds purchase in Congress?

There was a time in American law when opposing spouses in a divorce action could “recriminate” against one another. The wandering husband might be accused of infidelity and recriminate by accusing the wife of sleeping out. Lawyers would call that the “you too” defense. The legal world recognized that defense to be dysfunctional and illogical. Every jurisdiction in the country jettisoned it, save for New York.[3] Sadly, a handful of office holders remain mired in the corollary principle of comparative rectitude. They would rather themselves decide the winner than allow citizens their majority will.

The 2020 Democratic campaign, despite a pandemic, was the largest grassroots fundraising and outreach endeavor in modern history. Democrats massively outraised and outspent Republicans at the presidential level and in House and Senate races across the country. The enterprise mounted on January 6, 2021 to reject the election is pure recrimination. What the losing side fears most is the winner’s promise of a return to reasoned, ethical politics. Authoritarianism had a test run in the White House from 2017 to the present. Moving forward from the last-ditch stand on January 6 is the first charge up and over the ramparts on January 20. Recriminations are inherently unethical. While the Electoral Count Act may be doubted and the result discounted, the ethicality remains—Joe Biden won and Trumpism lost. Recriminations will nonetheless follow as long as autocracy takes center stage and democracy is shoved aside. That’s recrimination by any standard. It is unethical.

Gary L Stuart

I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.

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[2] Ibid.

[3] N.Y. Dom. Rel. L. § 171.