When is a Prosecution Political?
Finally, Vyshinsky pioneered the notion of the “show trial” in which the defendant would be brought before the world, a broken and hollow man, to confess his crimes as one act in a longer play in which his crimes would be staged before the world. Through this technique, Vyshinsky argued, he could not only eliminate the opponent, but destroy even the memory of the opponent, limiting the likelihood that an opposition group might form around him.
... And one of the problems faced by American justice officials is the proliferation of requests for assistance in connection with cases that look suspiciously like political persecution. What are the flashpoints to examine in making a determination of whether a case is politically motivated?...
Identity of the Subject. Is the subject an opposition political figure of some sort? ... Even if not a political figure, has the subject criticized the Government or is there reason to believe that he could be harmful to the Government in a political way? Is the subject associated with a political party? Does the subject hold political office? Is the subject seeking election to political office? This is a threshold inquiry. ...
Nature of the Charges. Some sorts of charges are of an inherently political nature... With respect to other crimes, you should consider carefully the local law enforcement authority’s pattern of conduct in connection with charging this crime. Is it charged commonly? Are criteria for charging the crime evident? Has the crime been charged regularly in connection with political cases? One recurrent approach involves tax audits and tax charges.
Timing and Circumstances of Criminal Investigations and Charges. Secure information concerning the time line. When was the probe initiated and how did it come to be initiated? Does it comply with established procedures and rules governing investigations? All departures from the rules should be noted. Any investigator may make a mistake, of course, but chronic violations may suggest something else, especially if they consistently prejudice the rights of the target. Consider the parallels between this time line and potentially relevant political events, particularly elections and election campaigns. Charges brought against political candidates during an election cycle are particularly suspect. In several states in this region, certain criminal charges will result in disqualifying a candidate for office. Obviously when charges are brought against an opposition political candidate during an election cycle, this is suspicious. When the Government then seeks the candidate’s disqualification, this is still more suspicious.
Circumstances of Investigation; Arrest and Detention; Media Dealings. When political figures are involved, has an intrusive investigations been conducted? That is, does the investigation appear geared to disrupting the political figure’s work, for instance, as a parliamentarian or local official? Does it appear geared to embarrassing a candidate for election? If the figure was taken into custody and charged, how was this conducted? Was the arrest done in a way designed to maximize publicity and embarrassment for the political figure? ... Was the investigation played out in the media? Was the arrest and announcement of charges hyped in the media? Do media accounts bear any relationship to a political program or campaign which the Government is mounting? Is the allocation of resources and materials for the investigation and prosecution “normal” or commensurate with similarly charged crimes?
Conduct of the Preliminary Investigation. ...The use of investigatory detention is not abusive per se, but attention should be paid to the amount of time spent in the investigatory detention regime. ... Does the detainee have access to counsel? Consider the conditions of the detention facility and the length of detention. During the period of investigatory detention, has the prosecution made statements to the media about the case, suggesting crimes which are being investigated and charges which might be brought?
Conduct of Trial. ... Is the trial open to the public? Is the presentation of evidence open to the public? Has a gag been imposed on the defense counsel? In general, restrictions on access to the media and public should not be considered symmetrically. It is inappropriate for the prosecution to conduct its case in the press because this violates fundamental rules of prosecutorial ethics. ... Was there a pattern of abridging or curtailing rights given to the defense in trial? In particular, was the defense precluded from presenting its evidence or its witnesses? ...
Interview of Prosecutors and Defense Counsel. If called to make an assessment as to whether a criminal action is politically motivated, consider paying a call on the prosecutor and defense counsel to discuss the case. In the prosecutor’s presentation of the case, note carefully whether political considerations are articulated at any point. If a prosecutor speaks of a political party or movement as “corrupt” rather than the specific individuals charged, this is extremely telling. Ask the prosecutor whether the case has been coordinated or discussed with Government figures outside of the (DA's Office)... Ask the defense counsel whether he/she had full access to the client without being monitored, whether leave was given to present a full defense and whether the defense counsel personally was subjected to any reprisals or threats. ...defense counsel would have access to the prosecutor’s evidentiary file.
State Secrecy. Was state secrecy invoked in any aspect of the case? Why? ...
Parallel Public Campaigns. Consider carefully whether the prosecution tracks any political campaign which is being run by the Government or the Government party? ... Does the Government appear to have access to the prosecution’s evidence? Does it have prior knowledge that charges will be brought? Is this information used for a political purpose?
Media Coverage. Particularly where the media is controlled or manipulated by the state or aligns itself with the political party which holds the prosecutorial power, consider carefully the tone and tenor of the media coverage. Does the media flavor the criminal case in political tones by stressing for instance the party affiliation of the defendant, by using the word “corrupt” and by generally tendentious reporting? ... Does the media have prior knowledge of criminal investigations, of charges brought, of evidence which will be used? Does the media quote Government officials or prosecutors in connection with pending cases? Conversely, does the media quote the defendant or defense counsel? When the media “tries the case to the public” in advance of the trial, building public sympathy or support for the charges brought, this is a strong indicator of a politically motivated prosecution.
Beyond Guilt and Innocence. It is frequently impossible for an outside observer to form useful views as to the guilt or innocence of the defendant. Moreover, as law enforcement professionals you may be inclined to take the representations made by your local counterparts at face value. You need to approach them with a healthy level of skepticism when political figures are involved. In fact, I would recommend simply disregarding the question of guilt or innocence when you’re trying to form a view about whether a prosecution is politically motivated. These are separate questions. Remember that it is entirely possible both that a subject is guilty of the crime charged and that the prosecution is politically motivated. Remember Attorney General Robert Jackson’s famous statement that in a modern society with a sweeping criminal code, virtually every citizen can be found to have transgressed a criminal law at some point. ... In making this determination, you should be prepared to question the motives and conduct of the prosecutor. Is the prosecutor investigating and acting on a crime, or is the prosecutor “out to get” an individual? The latter case is per se abusive. When the prosecutor is “out to get” an individual as part of a political agenda, the act of prosecution is an assault on democratic institutions. ... in any event, U.S. policy would strongly oppose cooperation with or support of a prosecution when there is strong reason to believe it is politically motivated.
Jackson’s view of the prosecutor rigorously detached from politics, who conducts a case without even a suggestion of political motivation, reflects the American ideal.
But the post-Soviet space is haunted by a different legacy. The key historical figure is Andrei Januaryevich Vyshinsky, Stalin’s prosecutor. As Arkady Vaksberg wrote in his masterful biography of Vyshinsky, “his prime contributions were that ‘justice’ is flexible depending on what is ‘in the interests of the people,’ and his explanation that the ‘presumption of innocence’ is an abstract liberal legal principle that has a ‘demobilizing, demagnetizing effect … in the fight against crime.’”
But Vyshinsky is best known for his use of prosecution as a political tool. Those identified as enemies of the regime could of course simply be liquidated, but Vyshinsky argued, and Stalin accepted, that it was far more efficient to use the criminal justice system to destroy them.
They would be accused of both political crimes and the normal garden variety of crimes–petty corruption, for instance. They would be placed under strong pressure to confess their guilt. ... Finally, Vyshinsky pioneered the notion of the “show trial” in which the defendant would be brought before the world, a broken and hollow man, to confess his crimes as one act in a longer play in which his crimes would be staged before the world. Through this technique, Vyshinsky argued, he could not only eliminate the opponent, but destroy even the memory of the opponent, limiting the likelihood that an opposition group might form around him.
Journalist Scott Horton
Starting in June 2007, Scott Horton began to express alarm at the
corrupt prosecution of Don Siegelman in his online articles "No
Comment". Scott Horton is a New York attorney known for his work in
emerging markets and international law, especially human rights law
and the law of armed conflict. Horton lectures at Columbia Law
School. He is a contributing author at Harper's and other leading
print media as well as writing the Harper's blog.
Scott Horton Speaking on 'Signs of Political
Huntsville, AL April 2008
"Or perhaps I should quote my former partner and friend Michael
Mukasey in his recent speech in San Francisco, "A politically
motivated political corruption investigation is just corruption by
another name." Exactly.
Now, I started my review of the Siegelman case ... looking at a series
of questions that are used to flag political prosecutions. These
questions are in fact used by our Department of Justice and
Department of State. The are used in connection with determinations
as to whether or not assistance should be rendered to foreign
powers requesting help in connection with prosecutions involving
political figures. These are the questions used to determine whether
a prosecution is political and should receive support from the United
1. Is the subject an opposition political figure?
2. Is the crime that has been charged something applied
uniformly, or does it seem to be used just on political
adversaries. And this is particularly the case when the crime as
charged deals with details of running campaigns.
3. When was the probe initiated and how did it come to be
initiated? Does it comply with established procedures and
rules governing investigations? Charges brought against
political candidates during an election cycle are particularly
suspect. And the golden rule is that prosecutors investigate
crimes, not people. So, what was the crime and how did it
come to the attention of the prosecutors?
4. Was an intrusive investigation conducted? That is, does
the investigative work appear geared to disrupting the political
figure's work, for instance, as a representative in the
legislature or a local official? Does it appear geared to
embarrassing a candidate for an election? Was the
investigation played out in the media? Was the arrest and
announcement of charges hyped in the media? Is the
allocation of resources and materials for the investigation and
prosecution "normal" or commensurate with similarly charged
5. Is the trial open to the public? Is the presentation of
evidence open to the public? Was a gag imposed on
counsel? Did the prosecutors engage in questionable conduct
in picking a court and a judge? Was the defendant granted
freedom pending trial and appeal?
6. Is there a political tone to the prosecutor's presentation of
his case? Does he speak of a political party or movement as
"corrupt" rather than a specific individual? Is there evidence to
show that the prosecutor discussed the case with Government
figures outside of the chain of prosecutorial authority? Were
senior political figures exercising influence in the prosecution?
7. Was the defendant or his counsel the subject of
harassment, threats, robberies or break-ins?
8. Does the prosecution run parallel with a political campaign
which is being maintained by the Government or the
Government's party? Is the prosecution being cited as
evidence of "corruption" by the opposition? Does the
Government appear to have access to the prosecution's
evidence? Does it have prior knowledge that charges will be
brought? Is this information used for political purposes?
9. Does the media have prior knowledge of criminal
investigations, of charges brought, of evidence that will be
used? Does the media quote government officials or
prosecutors in connection with pending cases?
When I applied this test to the Siegelman case, it achieved a score
that was pretty much off the charts. In fact, I'd say, further off the
charts than most of the cases I'm used to studying in the former