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.

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.

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.

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.

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 for and why.

Aesop ended his stories with a moral tag. Would we remember or even care about any of his fables if they were distilled to a compendium of the moral tags? The message is contained in the tale of the frogs who asked for a king, the hare and the tortoise, the fox and the grapes, or the lion and the vixen. When we repeat an Aesopian story we can get the point across without employing the tag, and if we do want to include it we have to look it up to get it right.

What is the moral of the story of Hamlet? We learn the most from stories with no moral tag. Is there a moral to the story of John Peter Zenger, who was tried and acquitted in 1735 for seditious libel when he published articles critical of the New York governor? Seen from the lawyer’s perspective the Zenger trial might carry the restriction, “good for this day only.” The Zenger trial, as Leonard Levy demonstrates, is not important as a precedent.¹⁶ The legacy of suppression continued long after Zenger’s acquittal. Yet Zenger’s case shaped American thinking about censorship and freedom of the press. It did more than any other single event to fix the meaning of the First Amendment. We can see even greater significance in the trials of Socrates, Jesus, Joan of Arc, and Galileo, none of which embodies legal precedents. They are vital because of their stories, not because of their rules and precedents.

The law, on the other hand, needs rules and codes. If the law were only stories, we would be lost in a house of mirrors. Wherever we looked we would see only ourselves, most of the time in grotesque distortion, and we would never find our way out. A painting without a title can pass judgment at a show, probably win a prize. While the artist may let us draw our own conclusion without the help of a tag, a judge, lawyers, and anyone concerned with law must have rules and codes in common. Art might do nicely without a canon, although this proposition itself has for centuries been an issue of dispute. The nature of law requires that it be a public standard. If it is not, it is not law.

Law is a combination of story and rule. H.L.A. Hart defines law as the union of primary and secondary rules. The primary rules give us our sense of obligation; the secondary rules correct uncertainty, provide modes for change, and offer remedies for inefficiency in the law.¹⁷ This book will amend Hart’s definition by arguing that law is the union of primary stories and secondary rules. Certain trials present stories of such consequence that society’s common understanding of basic issues of politics derives from them. We change the rules of law accordingly as our understanding is revised by these stories. That is what makes the stories primary and the rules secondary. Most trials do not embody such paradigmatic and society-shaking stories. Few do, but those few present such basic dilemmas as to engage our common deliberation as a public. These trials compel us to examine our fundamental values and perhaps revise them. Such primary trials become our teachers.

We learn from political trials great and small. Certain trials, for instance the Chicago Eight trial or those of the Rosenbergs or Sacco and Vanzetti, characterize an era. We can see a generation’s conflicts in one trial, and we understand the generation by understanding the trial. Other trials define a nation, and one or two—Socrates’ and Jesus’—represent all Western civilization. Many other political trials, on the other hand, are mere specks when viewed against the landscape of history. The list of political trials in the appendix contains both those of world-historic primacy and those that are not. Likewise, certain chapters will give considerable attention to what might be historically insignificant trials. The Karlton Armstrong trial, for example, hardly ranks as important when set beside the trials of Thomas More, John Lilburne, or John Peter Zenger. Yet Armstrong’s trial rates an entire chapter, and the others do not. Such apparently inequitable treatment implies no relativity of judgment. Some of the lesser trials provide either convenient instances or clear examples of the issues raised in political trials. The Armstrong trial is a vivid contrast to the trials of dissenters who acted from conscience, although Armstrong’s defense was an indictment of the Vietnam War. The cases selected for attention in this book, in short, provide a way of untying knotty problems.

Gordius is said to have tied a knot so convoluted and tight that whoever was skillful enough to untie it would command all Asia. Many made the attempt, but none untied the knot. When Alexander the Great failed, he whipped out his sword and cut the knot.¹⁸ Political trials present Gordian knots. While a court may cut through the issues with a rule in a sharp decision—the defendant may be convicted or acquitted—the dilemmas of responsibility, morality, representation, or legitimacy remain. The story and its dilemma continue no matter how the court decides.

This book concerns itself with political trials within the Western tradition. Given the long history of that tradition and its global influence, this is merely a small bite. Certain features of the legal and political institutions of the West combine to produce political trials which in other traditions, such as the Chinese, would not be as clearly defined. In the Western tradition legal institutions are set against other institutions, distinguished from, although strongly influenced by, custom, morality, religion, economics, and politics. The tension between the legal and other institutions, especially the political, is further tightened in the Western tradition by the acceptance of the rule of law. The state is bound and limited by the law.¹⁹ Those who possess power cannot use it arbitrarily. As a consequence of our relative legal autonomy plus the rule of law holding those with power accountable, political trials appear regularly and seemingly naturally. Further, political trials, as this book seeks to demonstrate, assist in the organic growth of the body of law. In crises the tension between reality and ideals, between the stable and the dynamic, between the immanent and the transcendent, produces change. Much of this change comes in courtroom confrontations when each side attempts to persuade not only the judge and jury but all society and even history. The Western legal tradition, as Harold Berman delineates it, has a built-in mechanism for change: “The law is not merely ongoing; it has a history. It tells a story.”²⁰ If, in short, political trials are primarily a Western phenomenon, as products of a fundamental inner logic within that tradition, they are integral to it and contribute to its development.