Among Chief Justice john marshall's better-known observations is his declaration in marbury v. madison (1803) that the United States has "a government of laws and not of men." The assertion calls forth visions of a politically neutral legal system, dispensing evenhanded justice without regard to partisan concerns or to the identities of the parties. Yet, much in American legal history belies Marshall's aphorism. This country's past is replete with political trials, and they have done more than a little to shape its constitutional law.
In a sense, of course, all trials are political. Courts, judges, and the other institutions and individuals involved in the administration of justice are part of a system of government; even when they do no more than punish an ordinary crime or resolve a private dispute, they help to demonstrate the utility of that system and to maintain its authority. To most people, though, the term "political trial" connotes something more; it designates a type of legal proceeding having peculiar properties that distinguish it from ordinary civil and criminal litigation. There is much disagreement about what those defining attributes are, but a political trial is probably best defined as any civil or criminal trial or impeachment proceeding that immediately affects, or is intended to affect, the structure, personnel, or policies of government; that is the product of political controversy; or that results when those in control of the machinery of government seek to use the courts to disadvantage their rivals or preserve their own economic or social position. Some commentators would dispute the inclusion of civil proceedings within this definition, but from the earliest days of the Republic, suits seeking damages, injunctions, and various special writs have been used to mobilize judicial machinery in support of political causes and to suppress critics of the government.
Most political trials are criminal, however. In some, the defendants are charged with offenses that are political in nature, involving direct challenges to governmental authority. treason is the most serious crime of this type. Others include seditious libel, subversion, sabotage, and espionage. Prosecutions for bribery, corruption, abuse of official power, and vote fraud also belong in this category.
A trial can be political even if the defendant is not charged with one of these political offenses, for sometimes political issues pervade trials for ordinary crimes. As Otto Kirchheimer has pointed out, "political coloring [can] be imported to such a garden-variety criminal trial by the motives or objectives of the prosecution or by the political background, affiliation, or standing of the defendant." The 1886 Haymarket case, in which defendants were prosecuted and convicted on charges of conspiracy to commit murder and being accessories after the fact in a fatal bombing only because they were anarchists, is an example of the kind of proceeding to which he refers.
Like many political trials, the Haymarket case was a product of political persecution. Sometimes, though, the defendant imports the political coloring to a criminal case. A courtroom provides the accused with a public forum and an audience for his political message. Thus, during the 1920s, General Billy Mitchell deliberately provoked his superiors into court-martialing him for conduct prejudicial to the discipline and good order of the army so that he could gain a hearing for his views on air power and publicize what he regarded as the military's misuse of aviation.
Not all political trials involve such deliberate exploitation of judicial machinery for political purposes. Some earn this designation simply because political considerations determined their outcome. An example is the world war i trial of Joe Hill. Hill's affiliation with a radical labor organization, the Industrial Workers of the World (IWW), was unknown when he was arrested for a murder, but it was the reason for his ultimate unfair conviction on that charge.
A trial should also be considered political if the ordinary crime of which the defendant was accused was a product of political controversy or committed for political reasons. The watergate burglary and coverup conspiracy trials exemplify this type of proceeding. The offenses with which the government charged the defendants were not inherently political, but the fact that the defendants were alleged to have committed them to advance richard m. nixon's reelection campaign and to protect the reputation of his administration gave their trials a clearly political character.
Legal proceedings can sometimes take on that coloration simply because they happen to affect substantially the politics of their time. During the vietnam war, Lieutenant William Calley was court-martialed for his role in the massacre of more than one hundred civilians at My Lai. Because it symbolized for hawks and doves alike all that they believed was wrong with the American military effort in Southeast Asia, the Calley case became one of the major political issues of the early 1970s.
Many of America's best-known political trials have arisen against the backdrop of military conflict. Both the american revolution and the civil war generated prosecutions for treason and other explicitly political offenses. During and just after World War I the federal government and numerous states launched legal assaults on radicals and dissenters. world war ii produced a circuslike sedition trial of some of the most vitriolic right-wing critics of President franklin d. roosevelt, as well as postwar prosecutions of U.S. citizens alleged to have collaborated with the enemy and of leaders of the defeated Axis powers. Scores of American communists found themselves on trial during the korean war. The Vietnam War also unleashed a torrent of political trials, produced by the efforts of the administrations of lyndon b. johnson and Richard Nixon to repress dissent and the determination of antiwar activists to obtain a judicial declaration of the war's illegality. International tensions falling short of shooting wars have also given rise to numerous political trials, such as those of Jeffersonian politicians and editors during the Quasi-War between the United States and France in the 1790s and, more recently, the trials of domestic communists during the early days of the Cold War.
Second only to military confrontations as a cause of political trials are conflicts between labor and capital. Indeed, during the period 1870–1930 they were more important. During that era big business exercised a growing influence over all levels and branches of government, and it could generally count on the assistance of prosecutors and judges in putting down challenges to its economic power. Prominent union leaders, such as eugene v. debs of the American Railway Union and "Big Bill" Haywood of the IWW, found themselves cast as defendants in highly politicized legal proceedings, as did numerous other labor activists. During World War I federal criminal prosecutions devastated the IWW.
After the rise of organized labor to political power during the 1930s, labor-management conflict ceased to generate a significant number of political trials. Racial problems continued to do so, as they had since antebellum days when white southerners sometimes tried rebellious slaves, and numerous northern abolitionists suffered prosecution for interfering with enforcement of the fugitive slave Law of 1850. The most spectacular political trial of the antebellum era was the 1859 state treason prosecution of abolitionist firebrand John Brown for his raid on Harpers Ferry, Virginia (now West Virginia). Although the Civil War destroyed slavery, it did not put an end to political trials whose root cause was race. From West Point Cadet Johnson Whitaker in the 1880s to members of the Black Panther party in the late 1960s and early 1970s, African Americans who challenged white supremacy, whether violently or peacefully, found themselves defendants in political trials. The peak period for such prosecutions was the decade around 1970, which produced the highly publicized LeRoi Jones, Angela Davis, Bobby Seale, and Panther Twenty-one cases.
All of these black militants had positioned themselves well outside the political mainstream. Like the defendants in most American political trials, they were essentially scapegoats who lacked real power and posed threats to the system that were more symbolic than real. Seldom have those in authority hauled serious rivals into court. Early American history does offer some examples of legal attacks on potent challengers to incumbent regimes, such as the sedition act prosecutions of the Republican opposition in the late 1790s. But most such trials occurred before the concept of a legitimate political opposition had fully established itself, and most triggered a popular reaction against those who had initiated them. There have been few prosecutions of mainstream opposition groups since the Civil War.
Nor has the United States produced many examples of that staple of political justice elsewhere, the "successor regime trial," a criminal prosecution brought by those who have recently captured control of the government to discredit their predecessors in power. The principal reason for this is no doubt the constitutional stability that has kept America under the same system of government for over two hundred years. But even after the North forcefully displaced the state and national governments of the South during the Civil War, it tried few leaders of the defeated Confederate regime. In the United States, political trials have usually occurred, not after wrenching transfers of power, but at times when the status quo was under challenge because of social and political ferment unleashed by war, economic conflict, or racial discord.
Although not associated with cataclysmic constitutional change, such legal proceedings have helped to shape the Constitution. In some doctrinal areas the precedents that supplement the language of the document itself are entirely the products of political trials. This is most obviously true of the procedures worked out by the House and Senate to supplement the purely political process of impeachment. The law of treason is also a product of political trials.
So are some freedom of speech doctrines. Justices oliver wendell holmes, jr. , and louis d. brandeis worked out their clear and present danger test in response to appeals by radicals prosecuted during World War I and the postwar Red Scare. That test gained the endorsement of a majority of the Supreme Court in herndon v. lowry (1937), only to be restrictively reinterpreted in dennis v. united states (1951). Both cases arose out of political trials of communists. In brandenburg v. ohio (1969) the Court, in the process of overturning a conviction of a Ku Klux Klansman for the political offense of criminal syndicalism, articulated a new principle even more protective of expression than the original clear and present danger test had been.
Political trials have affected other facets of constitutional law as well. For example, united states v. nixon (1973), which recognized but limited the doctrine of executive privilege, arose out of the efforts of special prosecutor Leon Jaworski to obtain White House tapes for use in the Watergate conspiracy trial. The ringing declaration in ex parte milligan (1866) that the Constitution "covers with the shield of its protection all classes of men, at all times, and under all circumstances" and cannot be "suspended during any of the great exigencies of government" represents a doctrinal response to the abraham lincoln administration's efforts to use military commissions to punish civilian dissidents. Even Marbury v. Madison, the case in which the Supreme Court first applied the doctrine of judicial review, was a product of efforts to use judicial machinery to achieve political objectives.
The Court has, to be sure, exhibited some reluctance to decide issues thrust before it in this way. The political question doctrine is evidence of that attitude, as is the Court's refusal during the Vietnam conflict to hear appeals pressed upon it by litigants hoping to get the war declared unconstitutional. Nevertheless, political trials have led to rulings that have created precedents and shaped doctrine in important areas of the law. As alexis de toqueville wrote in Democracy in America, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." Often that resolution has begun in the context of a political trial. Although often condemned, such proceedings are an integral part of the American constitutional tradition.
Michael R. Belknap
Becker, Theodore L., ed. 1971 Political Trials. Indianapolis, Ind.: Bobbs-Merrill.
Belknap, Michael R., ed. 1981 American Political Trials. Westport, Conn.: Greenwood Press.
Hackman, Nathan 1972 Political Trials in the Legal Order: A Political Scientist's Perspective. Journal of Public Law 21:73–126.
Kirchheimer, Otto 1961 Political Justice: The Use of Legal Procedure for Political Ends. Princeton, N.J.: Princeton University Press.