Political Trials

Gordian Knots in the Law

Ron Christenson

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781351498579
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

"Political trials take issues of responsibility, conscience, representation, and legitimacy, which are tied in tight political and legal knots, and force us to face questions about our public identity, our standards for public policy, and our sense of history. Ron Christenson explores how political trials, especially those within the rule of law, engage society's conflicting values and loyalties. He examines numerous political trials throughout history, bringing into question basic foundations of law, politics, and society. Christenson classifies political trials according to the issues they generate in the political sphere: partisan trials are spurious legal proceedings but politically expedient; trials of corruption and insanity raise questions of public and personal responsibility; trials of dissenters involve problems of conscience; trials of nationalists highlight the nature of representation and the relationship of the part to the whole; and trials of regimes engage the most fundamental concept of both law and politics--legitimacy. Political Trials brings these considerations to bear on some of the best-known cases in history, including the Gunpowder Plot; the Spanish Inquisition; the Dreyfus affair; the Nuremburg trials; trials of dissenters such as Socrates, Thomas More, Roger Williams, and the Berrigan brothers; and trials of nationalists such as Joan of Arc, Gandhi, Knut Hamsun, and the Irish republicans. Since the first edition appeared, a number of notable political trials have raised critical issues for society. Shocking public exposures about the Guildford 4 and Maguire 7 trials shook the British criminal justice establishment, while in the United States trials concerning the beating of Rodney King led up to the O.J. Simpson spectacle and a host of parallel questions. The trials of right-wing terrorists such as Paul Hill, found guilty of murdering an abortion doctor, and Timothy McVeigh, convicted of the Oklahoma City federal building bombing, parallel "

1
What is a Political Trial?

Are political trials necessary? Do they reflect something about the nature of politics and law which makes them inevitable in every society? Or are political trials a disease of both politics and law? Predictably, totalitarian regimes employ political trials—some sensational, most secret—to accomplish the obvious ends of total power: total control of a total population. Stalin’s purge trials and the Nazi Peoples’ Court were juridical nightmares, demonstrating that corrupted absolute power tends toward absolute self-justification. Do such “trials” have anything in common with other trials which must also be called political, including the Wounded Knee trial, the trials of the Boston Five, the Chicago Eight, and the Berrigan brothers, or even of Galileo, Joan of Arc, and Socrates? Do political trials make a positive contribution to an open and democratic society? This book concludes that they do. Political trials bring together for public consideration society’s basic contradictions, through an examination of competing values and loyalties. They are not incompatible with the rule of law, and are best understood by examining the questions they raise.

Questions of Law and Politics

What is a political trial?¹ Are political trials better classified as law or as politics? If they are totally political, why have a trial? Since the courts are part of the “system,” are all trials, therefore, political? Or, because in every political trial the accused is charged with a specific violation of the criminal code, are no trials political? Is the designation “political trial” pejorative, used when justice seems impossible, or is it merely descriptive, used when more is at stake in a trial than a transgression of the criminal code? Most attempts to designate a trial as political become mired in the quicksand of motive, in the argument that the prosecution, the judge, even the entire court system, are “out to get” the defendant, or conversely, that the defendant and his lawyers are using the court as a platform in their program to undermine the legal system and accomplish their political goals. Such judgments are fine instances of the genetic fallacy. Legal and political assessments, when based on a guess at motives, become quagmires. Motives are always numerous and various, and they generally operate at odds with each other. In both law and politics, however, we must make judgments. If we refuse to make judgments, believing that one motive is as good or as bad as another, we will land either in the cynical position that law is the will of the stronger and therefore all trials are political, or in the naive, Panglossian position that none are.

We might sidestep the difficulties of definition by beginning with the ingenuous assumption that we can recognize political trials when we see them. If we can point to a number of trials and say with some confidence that these, if any, are political trials, we might more easily understand the nature of law and politics that precipitates such trials. The trial of Socrates for corrupting the youth of Athens and the trial of Jesus for blasphemy and sedition are most likely to be generally recognized as political trials. We could follow these two classic examples with others: the Inquisition (both the medieval and Spanish versions), the 1431 trial of Joan of Arc for heresy and witchcraft, the 1534 trial of Thomas More for “maliciously” remaining silent when asked about Henry’s supremacy in religion, the 1633 trial of Galileo for heretically suggesting that the earth moved around the sun, or the many treason and sedition libel trials in England’s Puritan revolution. Are there more certain examples of political trials than those of two kings, Charles I in 1649 and Louis XVI in 1792? Would anyone suggest that the trial of the Irish patriot Robert Emmet or the treason trial of Lord Haw-Haw (William Joyce) after World War II were not political trials? What about the trials of Alfred Dreyfus, Sacco and Vanzetti, or Julius and Ethel Rosenberg?

These trials, and more, come to mind when political trials are mentioned. Most of the above defendants have come to us in the judgment of history as heroes unjustly prosecuted. Yet in each case an argument can be made that under the circumstances the prosecution was understandable, even reasonable, and the judgment sensible if not just.

In 399 BC, while Athens was recovering from the disastrous Peloponnesian War, the democratic leaders Anytus and Meletus recognized that Socrates, who had associated with the oligarchic faction, was a threat to the postwar reconstruction. Two of his students, Alcibiades and Critias, had been ruthless while in power. Socrates, meanwhile, was undermining what small faith the youth had in democracy.² Likewise, Jesus presented an internal threat to Rome. Judea was difficult to govern with its mix of nationalist extremists inclined toward terror, such as the Zealots, and such religious fanatics as the Essenes or the followers of John the Baptist. The elders in the Sanhedrin, who had authority in Jewish law, regarded Jesus as a threat to the delicately balanced political relationship with the Roman governors. Further, he was a peril to Jewish law. His activities during Passover, driving the merchants and money-changers from the Temple in Jerusalem, were a forewarning to both the Sanhedrin and Rome. Removing such a troublemaker and blasphemer from the scene, one hailed by the mob as “King of Israel that cometh in the name of the Lord,” could be defended as best for imperial and community interests. The full force of Rome, in fact, did move against the next generation in Jerusalem (70 AD).³

Similar sensible arguments can vindicate other notable political prosecutions. Joan was given every chance by her examiners to acknowledge that her “voices” were not superior to the authority of the church. She was admonished to return to the way of salvation but persisted in her heresy.⁴ The interrogation of Thomas More was designed to secure his compliance, not his execution. Henry VIII and Thomas Cromwell desired the assent of More, the ex-chancellor, to the new policy of supremacy and to the revised order of succession after Henry’s marriage to Anne Boleyn. When Henry learned that Pope Paul III had intervened by elevating More’s fellow prisoner, John Fisher, to cardinal, he exploded. Only then did he set in motion the machinery that led both More and Fisher to their death.⁵

Galileo was admonished in 1616 by Cardinal Bellarmine that the church expected only obedience, not “absolute assent.” He was not forbidden from entertaining his opinions as a probability or from discussing them with his peers. At his 1633 trial it was revealed to Galileo that even the inquisitor Firenzuola had “no scruple in holding firmly that the earth moves and the sun stands still.” Nevertheless, the issue of the trial was not the scientific truth but the church’s authority.⁶

Charles I had been waging war against Parliament, which tried him. Louis XVI, likewise, conspired and intrigued with foreign powers to bring about a war and “be really king again.”⁷ Robert Emmet was a leader in an insurrection which resulted in the assassination of Lord Kilwarden and Colonel Brown.⁸ William Joyce collaborated with the Nazi propaganda machine.⁹ Charles, Louis, Emmet, and Joyce, in different ways, all attempted to bring down the state by force.

With the perspective of time, the postwar trials of Dreyfus, Sacco and Vanzetti, and the Rosenbergs can be seen as products of hysteria: anti-Semite, anti-foreign, and anti-communist. Nevertheless, at the time, highly respected leaders of opinion looked into the cases and put the weight of their influence behind the convictions. The French General Staff was intractable in its support of the court-martial of Captain Dreyfus, and the entire French society was divided. France had lost Alsace and Lorraine to Germany; Dreyfus had been born in Alsace, and it was evident that someone assigned to the General Staff had passed information to the German Military Attaché Schwartzkoppen.¹⁰ A distinguished committee composed of Harvard president Lowell, MIT president Stratton, and Judge Grant advised Governor Fuller against clemency for Sacco and Vanzetti.¹¹ The Supreme Court, in a six-to-three decision, refused to stay the execution of the Rosenbergs.¹² President Eisenhower refused clemency, explaining, “the Rosenbergs have received the benefit of every safeguard which American justice can provide.… I can only say that, by immeasurably increasing the chances of atomic war, the Rosenbergs may have condemned to death tens of millions of innocent people all over the world.”¹³ If the passage of time has brought the consensus of considered opinion to a different conclusion in each of these cases, we have, after all, the advantage of historical distance and hindsight.

As the Dreyfus, Sacco and Vanzetti, Rosenberg, and many other cases illustrate, political trials have served societies in crises by providing a method of righting their psychic balance. Revenge is among the most ancient and persistent of political motives. A just trial may bring the revenge cycle to a halt, but an unjust trial will encourage the wronged faction to “get even” and “right the balance,” next time in their favor. In the sixteenth and seventeenth centuries the English partisans swung the pendulum of revenge, taking turns to demonstrate by trial and execution the treason of their opponents and generally ending with a show of their own perfidy.

Two trials from the French Revolution are examples of how in political trials societies seek a balance of injustice. First Louis XVI and then thousands of others were made to pay during the Reign of Terror for the sins of the ancient regime. Likewise, after the fall of Robespierre, Gracchus Babeuf and his followers in 1797, during the Directory, paid for the excesses of Robespierre’s Committee of Public Safety. Louis and Babeuf were accused of treason: plotting against the revolution in one case and advocating revolution in the other, but for French society the significance of their trials reached far beyond even these expanded indictments. Louis represented the old order and was guilty of being king. “Louis must die,” Robespierre told the convention trying Louis, “because the nation must live.”¹⁴ Babeuf represented the Jacobins and was guilty of being a revolutionary. In trying Babeuf the Directory sought to prove the same thing that Robespierre had in the trial of Louis: that Babeuf was an enemy of the people. To make their point, Babeuf was pulled through the streets to his trial in an iron cage, the same indignity the Austrians had earlier inflicted on the French.¹⁵

Not all political trials contrive to set up scapegoats. It is the thesis of this book that certain political trials are creative, placing before society basic dilemmas which are clarified through the trial. These trials become crystals for society. In them we can see the issues we must face and can better understand the choices we must make. But trials are not chess games which proceed according to exact rules, rigorous though the rules of evidence may be. Trials are, first and foremost, stories.

This book is written from the conviction that law is more than a system of rules. It emerges out of a tangled maze of stories. The rules are there to be found and are important. But they are found by lawyers and are important mainly for lawyers. Lawyers often set aside the stories. Law students and lawyers search for the law, even in our common-law tradition, by reading through appeals court opinions to find the rule, where the court says “We hold that.…” Given the vast number of cases, it becomes necessary to treat their accumulation as a code book full of holdings which become rules, and it becomes convenient to regard the one hundred-plus volumes of Corpus Juris as the literal embodiment of the law. Yet the wisdom of the common law is in the stories.

No matter how distilled the stories become and how thick the code books, the spirit, if not the body, of the law is in the stories. Certain stories, that is. They are the ones that shape our thinking about the dilemmas of law, influence our sense of justice, and change our morality. They do more. They provide society with a crucible for defining and refining its identity. These are the political trials. They are less useful for lawyers to build their cases upon than they are as the common possession for all society to use in clarifying what it stands ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Preface to the Second Edition
• Preface to the First Edition
• 1. What is a Political Trial?
• 2. Partisan Trials: The Question of Expediency
• 3. The SWAPO Trial: A Partisan Trial
• 4. Trials of Corruption and Insanity: The Question of Responsibility
• 5. Trials of Dissenters: The Question of Conscience
• 6. The Wisconsin Bomber and Other Frustrated Dissenters
• 7. Trials of Nationalists: The Question of Representation
• 8. The Wounded Knee Trial: A Trial of Nationalists
• 9. Trials of Regimes: The Question of Legitimacy
• 10. Conclusion: Do Hard Cases Make Bad Law?
• Appendixes
• A. Jury Selection in the Wounded Knee Trial
• Β. Possible Political Trials
• Bibliography
• Index