The Record Is Not Good For Perpetrators Of Politicized Criminal Proceedings

With the guilty verdicts in People v. Trump delivered by a Manhattan jury last week, the prosecutors are surely giving themselves a big pat on the back. We really got him this time! Undoubtedly they have convinced themselves that getting Trump branded a “convicted felon” (with little chance to get that reversed on appeal before the election, no matter how weak the conviction) will cause him to sink in the polls. At the very least, the successful prosecution of the main political adversary would have to be a positive for President Biden’s chances of re-election.

I wouldn’t be so sure. If you look into the history of efforts by a dominant political faction to use the criminal justice system as the means to disadvantage opponents, the record is not good for the perpetrators of these efforts. That is true even — maybe especially — where the politicized prosecution initially secured a criminal conviction.

I think it’s too early to expect day-by-day polling to tell us much about how these convictions might affect the upcoming presidential election in November. Instead, let’s look at some great politicized prosecutions of the past, and see how those worked out for the prosecutors.

For example, one of the most famous of this genre is the 1894 prosecution of Albert Dreyfus in France for allegedly giving military secrets to the Germans. Here is a summary of the affair from History.com. Dreyfus was a Captain in the French army. The military quickly tried Dreyfus in a court martial, convicted him, and sentenced him to life imprisonment on Devil’s Island. Two years later, a new head of army intelligence (Picquart) uncovered evidence that the traitor was another guy (Esterhazy); but instead of acknowledging the facts, the army transferred Picquart to North Africa, and then imprisoned him too. In 1898, Esterhazy was tried in his own court-martial, and acquitted. But then Emile Zola wrote the famous newspaper article “J’accuse” that accused the army of a massive cover-up. The whole scandal rocked France for a decade. Dreyfus was ultimately exonerated, and restored to his position in the army, where he served out his career. If you know anything about the Dreyfus affair today, it is as a famous example of official corruption and anti-semitism.

The trial of John Scopes in Tennessee in 1925 is another one where an initial conviction did not help prosecutors escape the harsh judgment of history. Here is a summary from Encyclopedia Britannica. Tennessee had passed a law in early 1925 (the “Butler Act”) making it a crime to teach the theory of evolution in schools. Scopes went ahead and did that, and was promptly prosecuted, and tried in July 1925. The judge in the case disallowed any arguments about the constitutionality of the statute, and also excluded expert scientific evidence about the theory of evolution. The jury convicted Scopes, who was sentenced to a fine of $100. On appeal, the Tennessee Supreme Court upheld the constitutionality of the statute, but reversed the conviction on the ground that the $100 fine was excessive! Today, if you have heard of the Scopes affair, you will undoubtedly know of it as the “monkey trial,” and as a prime example of small-minded know-nothings abusing the criminal justice system. (Don’t lose track of the fact that the politicians and judges in power in Tennessee in those days were all Democrats.)

Or consider the case of the so-called Scottsboro Boys, arising in Alabama in 1931. Here is a summary from the Smithsonian museum. The Scottsboro Boys were a group of black teenagers who were riding a freight train to go to another town to look for work. Also riding the same train were some white people, both men and women. A fight broke out between the whites and blacks, after which two white women accused some nine of the young black men of rape. The case went to trial in Alabama in April 1931, within about two weeks of the accusations being lodged, before an all-white and all-male jury and with the defendants unrepresented by counsel. Eight of the nine were convicted and sentenced to death. The case reached the U.S. Supreme Court in 1932 (things moved a lot more quickly in those days than they do today), which reversed on grounds of inadequate representation of counsel. After that, the case has a long and convoluted procedural history, with multiple reversals (another one by the U.S. Supreme Court in 1935 on grounds of the non-diversity of the jury pool) and multiple re-trials. But again, if you know anything about the case today, it is as an example of tremendous injustice and mis-use of the criminal justice system. (Again, don’t lose track of the fact that all the political power in Alabama in those days was held by Democrats, while the Supreme Court reversed the convictions prior to Roosevelt gaining control of the Court by appointments in the late-1930s.)

The Bill Clinton affair is perhaps not completely analogous, because he was not subject to a criminal prosecution for his conduct. Rather, there was the long-running special counsel investigation by Ken Starr, which had not led to any criminal charges; and then the Paula Jones civil case, which led to the revelation in 1998 of Clinton’s affair with Monica Lewinsky, and his perjury on the same subject in a deposition in the civil case. Clinton was impeached over these facts in December 1998. How did that work out for the Republicans? Clinton’s approval rating, per the Gallup poll, was in the range of 70-73% in early 1999, and still 68% when he left office at the beginning of 2001.

Are there any prosecutions as weak and as rawly political as the Bragg prosecution of Trump that have worked out well for the prosecutors over time? I’m sure somebody can come up with an example, but most of the history goes the other way.