No Comment — February 7, 2008, 8:17 am

When is a Prosecution Political?

Once a year, in January, the U.S. Government asks me to give a day-long presentation to Foreign Service Officers, FBI agents and Justice Department officials on the legal systems of the post-Soviet world to help prepare them for a posting overseas in nations with a legal system that will certainly seem unfamiliar to them. For several years I have included in this, at the request of the MLAT and legal attachés (that is, Justice Department officials who will be liaisons with law enforcement officials in the countries) and the State Department human rights officers, a section entitled “How to Spot a Political Prosecution.”

In the nations of the former Soviet Union, of course, political prosecutions are rampant. This goes back to the Imperial era, but it also has its doctrinal anchoring in Lenin’s attitude about justice. For the Bolsheviks, the idea of neutral and dispassionate justice is all a bunch of sentimental liberal hogwash. As every good Communist knows, justice is a tool of the class and of the party. It is used to bolster the party and its political control over the state. Individuals may therefore be prosecuted because they presented a threat to the rule of the party, or simply because it is politically expedient to do so. The trial of the great poet Joseph Brodsky, from which I quoted yesterday, is a paradigm case which I used to teach in some of my seminars. With the collapse of communism and the adoption of liberal democratic models across the region, however, these doctrinal positions were rejected. Of course, some traditions are slow to die. 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?

It now strikes me that this mode of analysis has some obvious relevance to things going on in the United States. But here are the questions I present for consideration by American Justice officials trying to grapple with the question in a foreign setting:

  1. Identity of the Subject. Is the subject an opposition political figure of some sort? Is he a member of an ethnic or religious minority which the State Department believes faces persecution in the country in question? 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. Of course, a person can be an opposition political figure and still commit a crime; he or she has no expectation of immunity by virtue of being in the political opposition.

  2. Nature of the Charges. Some sorts of charges are of an inherently political nature, and some charges go to acts which may be protected conduct under American law which should not be considered criminal. For instance, in this region criminal libel is a frequently charged crime, as is insulting the president. But in the American view, the conduct charged may well be viewed as protected free speech. Similarly, many of the Soviet successor states have a series of “economic crimes” which relate to the Soviet planned-economy past under which simply economic underperformance can be criminalized. 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.

  3. 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.

  4. 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? Similarly, arrests conducted in the dead of night and at the crack of dawn are historically considered abusive and are associated with totalitarian regimes (as in the Nazi policy “bei Nacht und Nebel,” arrests conducted before dawn to maximize terror on the populace). 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?

  5. Conduct of the Preliminary Investigation. These countries all have a regime of investigatory detention unknown in the United States. 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. In general after a fixed period, a magistrate must approve the continued detention. 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?

  6. Conduct of Trial. Has the defendant secured access to counsel. Is the counsel permitted to interview and speak with the accused without a prison guard being present or being otherwise observed? 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. Defense counsel generally is accorded much broader latitude in dealing with the press on defense. The conduct of the trial itself should be tested against the rules of criminal procedure of the country in question with a focus on the defendant’s rights. 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? Also consider the selection of the trial court and the assignment of the judge to handle the case. Was there any irregularity in connection with venue or judicial assignment? Was the defendant granted freedom pending trial in order to assist in the presentation of his defense? The old Soviet legal standard carried forward in each of these countries matched the U.S. standard, namely, the defendant is entitled to freedom to prepare his case unless he presents a threat to the community or is a flight risk.

  7. 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 prokuratura, and whether the prosecutor’s decisions in the case are being controlled or overseen by the Procurator General. 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. Remember that discovery of the sort available in American proceedings is not generally available here, although defense counsel would have access to the prosecutor’s evidentiary file.

  8. State Secrecy. Was state secrecy invoked in any aspect of the case? Why? Did this restrict the right to present a defense in any way? Was state secrecy invoked as a basis for silencing the defendant and his counsel?

  9. Parallel Public Campaigns. Consider carefully whether the prosecution tracks any political campaign which is being run by the Government or the Government 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 a political purpose?

  10. Media Coverage. Particularly where the media is controlled or manipulated by the state (this includes almost every country in the region) 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? (Suggesting that not just an individual, but “members of party X” are “corrupt”?) 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.

  11. 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. This is doubly true for formerly totalitarian societies whose criminal law regime is highly intrusive into what Americans would consider the sphere of private conduct. 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. Political considerations would drive whether the United States would publicly question or condemn such acts–this is a decision generally for the ambassador to take jointly with the State Department in Washington–but 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. The pressure included coercive interrogation techniques, but more frequently it involved identifying the target’s family and friends and threatening action against them. 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.

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