A Typology of Political Trials

Political trials differ from ordinary trials in the questions they raise. Criminal trials with no political agenda naturally raise difficult questions of law. Matters of due process, from controversies over search and seizure or the Miranda rights to whether the death penalty is a cruel and unusual punishment, can hardly be dismissed as easy cases.

The distinction between political trials within the rule of law and partisan trials which substitute political expediency for law is not new. At root it is Aristotle’s, paralleling his basic classification of constitutions. Aristotle found that a polity guided according to the common good, in which authority is exercised for the benefit of all members of society, is fundamentally different from one controlled in the interest of the rulers alone, in which those with power use it to their own advantage and not society’s. Regardless of the number holding power, whether one, few, or many, the key is the purpose of power: the common good or a partisan advantage. Constitutions of the former type Aristotle called “right constitutions,” and the latter “wrong constitutions, or perversions of the right forms.”²¹ The perverted forms are despotic, modeled after a master/slave relationship, while the right forms follow from an association of equals. So it is with political trials. Partisan trials carry the stamp of despotism, while political trials within the rule of law presume that all are equal before the law.

A further classification of political trials would categorize them into four types according to the basic issues of politics brought into question: (1) Trials of public responsibility. The nature of the public realm is at issue and the underlying questions are of two types: For an official in corruption cases, where is the line drawn between private life and public duty? For an accused in cases involving insanity, where is the line between actions of public responsibility and those for which a person cannot be held responsible? In both the question is what things are public and what are private? (2) Trials of dissenters. Here the correctness of both public policy and methods of dissent is at issue. The dissenter asks: Is the policy immoral? The dissenter in turn is asked: Is the dissent appropriate? (3) Trials of nationalists. A more basic issue, the nature of representation, is raised here, and the questions become: Is the government representing one people yet ruling another? Does this national group represent a distinct people? (4) Trials of regimes. The most fundamental issue of politics, the nature of legitimacy, is undertaken when one side asks: Was the former government legitimate? The other side responds by asking: Is the court legitimate?

We should note the progression from the issue of the relationship of public and private realms, to judgments about policy and dissent, to conflicts over representation, and finally to the critical matter of legitimacy. This escalation from a political trial of a rather common variety to the rare breed puts the court, the law, and the political order in increasing difficulty. Each type presents a Gordian knot tied successively tighter. Table 1.1 illustrates these types.

Political trials which proceed within the rule of law have their corresponding partisan trials. Trials of corruption can become mere trials of revenge. This is apparently what happened to Anne Boleyn and Marcus Garvey.

Any attempt to arrive at a typology involves a Procrustean effort to fit unique cases into a few pigeonholes. More than one political question can be raised in a given trial. Dissenters are often nationalists, and nationalists dissent. From John Lilburne and Peter Zenger to Lech Walesa, challengers of entrenched power raise many questions. How, for instance, should we categorize those in the former Soviet Union? Some dissent on religious grounds, others for classically liberal reasons, and still others as nationalists. Yet the Soviet authorities treated them all as cases of insanity. As the director of the Institute of Forensic Psychiatry, G. Morozov, put it: “Why bother with political trials when we have psychiatric clinics?”²² Nevertheless, to understand the nature of political trials, we must classify and arrange them in some logical order. Grouping them according to the issues they generate in the political sphere recognizes that, acknowledged or not, the political agenda is inescapably present in many trials.