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Tuesday, January 21, 2020

Defining a show trial

Some people are decrying-in-advance the upcoming Senate impeachment as a "show trial." At some level the term is apt. The factfinder seems to have its mind made up; the procedures in place do not seem calculated to discover the truth; and the proceeding will bear the cover of a judicial proceeding but serve as little more than a cover for the political decision of those in power.

But  think of "show trials" in the context of the Soviet Union or other totalitarian regimes, where the government uses the sheen of judicial process to purge and execute an enemy of the state, where a conviction is the pre-ordained result. This is going the opposite way--an acquittal is the pre-ordained result. The comparator is not Soviet or authoritarian show trials of ordained enemies. The comparator is state criminal proceedings against Klan members and other Southern whites charged with crimes against African-Americans (e.g., Byron De La Beckwith).

Does the term "show trial" still apply?

Posted by Howard Wasserman on January 21, 2020 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Also, Professor, when you mention the appearance of a defendant before a biased jury, what would your stance be on race-based jury nullification for things like minor drug crimes, or even more severe crimes? There were law professors in the 90s and 2000s who argued that it was legal and just for a black juror to say "I don't want to send another black man to jail, even if he did it" and then refuse to vote for conviction, given the mass incarceration present at the time. Putting aside whether that is right or wrong, I don't think I have ever heard such arguments as advocacy for "show trials", nor do I think it would be appropriate to label them as such.

Posted by: RComing | Jan 24, 2020 11:52:07 AM

"Show trial" does have the strong connotation that the person who is being prosecuted/sued/otherwise under investigation will be convicted or punished. I suggest that a defining element of a show trial is the lack, or minimization, of due process to protect the defendant from such a result. Thus, where the foregone conclusion of a trial is acquittal or exoneration, "show trial" is inappropriate, because in a liberal criminal or civil justice system we don't talk about "due process" for the prosecution. I would think the best example for the comparison you raise, the aborted prosecutions (or often failure to even bring a case) against the KKK or lynching gangs in the South, are terms we already have: "miscarriage of justice" or "errors of impunity".

Posted by: RComing | Jan 24, 2020 11:46:07 AM


I must disagree with you. We have been told for some months now that impeachment is not a criminal case or civil case, but a political proceeding. Ergo, the comparison to the Soviet trials makes some sense because they were politics disguised as trials, not unlike impeachment. However, I still don't like it because--even though I think the Democratic leadership has done a poor job with this process and it is most likely an extension of politics rather than concern for good government--comparing the process to a regime of systemic brutality is unfair.

Equating the Republican senate's response to a political process with Jim Crow protections of Klan members strikes me as equally unfair. The two are even less comparable than the already strained comparison between this process and Soviet trials. In the Klan's instance, you are dealing with complete systemic corruption in the judicial system and a perversion of justice. With the impeachment, we have one party countering another party in what is, again, mostly a political process.

As a result, I don't see how there's another reading other than one in which the barest of strained threads were forced together in order to, once again, justify juxtaposing the image of the Jim Crow south and the Klan with the Republicans.

I find it counterproductive and I think it's a good illustration of why the founders warned the impeachment was almost always a bad idea. And it may be an example of why the founders never tried to impeach a president. And, in fact, no attempted or actual presidential impeachment has been beneficial for the country.

Posted by: thegreatdisappointment | Jan 22, 2020 6:19:20 PM

No one called anyone racist. I compared the Senate trial to past trials where an acquittal before a biased jury was pre-ordained. In the past it was because of race, but the pre-ordination could be for anything--here it is for political tribalism.

And that is pretty obvious from any good-faith reading of what I wrote and the topic of the post.

Posted by: Howard Wasserman | Jan 22, 2020 8:39:02 AM

It's truly incredible how many different way the political left find to call their opponents racist or (in this instance) Kluxers.

And I say that as a left of center person. It's getting embarrassing.

Posted by: thegreatdisappointment | Jan 22, 2020 6:00:41 AM

That may be the comparator if one assumes Trump is guilty. If one assumes that the prosecutors (House Dems) overplayed their hands for political reasons, then the Senate jury is the hero of the story and the comparator might be something like the Ossian Sweet trials.

Posted by: anon | Jan 21, 2020 5:06:44 PM

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