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Ninth Lecture - Political Parties, and a Look at Famous Trials

Introduction

We have learned that there are many key components of government and politics. Government consists of three branches: legislative, executive and judicial. Government also has several different types: federal (national), state and local.

It is easy to think that government officials are the leaders, and the people follow. But as we have seen, there are many other players in this "game" that are as important, if not more so, than government officials, such as:

• the media
• interest groups
• lobbyists
• big financial donors to "Super PAC"s

What is missing from the above list? Political parties, which have an enormous influence on elections. And there is another category in shaping our society that is sometimes more important than elections: trials in court. We look at those two very different pieces of the overall puzzle in this lecture.

Political Parties

Remember that politics is a team sport, and the biggest teams are the political parties: Republicans and Democrats. There are third parties too, such as the Constitution Party, the Libertarian Party, the Green Party, and others. But they seem to be losing strength as time goes by.

The Republican and Democratic Parties are controlled by a small group of people who meet in what was once called the "smoke-filled room," which in the old days was a few powerful people smoking cigars who made all the important political decisions within each political party. Then the orders go out to everyone else in the party to obey, or else lose support from the party for reelection. Today most people do not smoke, but the political parties still are controlled by very few people.

At the top of the party structure is its national committee. For the Republicans, it is the Republican National Committee, which raises enormous sums of money and otherwise sets direction for the party. Its Chairman, Reince Priebus, can be seen frequently on television news programs stating the views of the Republican Party.

Whom the party decides to "back" (support) can have a big effect on who wins. There are some exceptions, however. The folks in control of the Republican Party never liked Ron Paul, and tried to defeat him when he ran every two years for reelection in Congress. But Ron Paul has always been very popular among his "constituents" (the people whom a politician represents, such as residents in the congressional district represented by the congressman). In most cases, however, when a political party's leaders decide a particular candidate should win the party's nomination rather than someone else, then that person favored by the party insiders typically does win. That is because he usually wins more endorsements and obtains more financial support for his campaign if his party "bosses" support him.

Let's learn more about the Republican Party Committee, which is the formal structure of the Republican Party. (The Democratic Party Committee works in a similar way.)

RNC procedures

The Republican National Committee (RNC) has its own set of rules that govern how it operates and picks its leadership. Each of 56 states and American territories has three representatives who are members of the RNC, and they meet twice a year. Their next meeting is in January 2013, when they will elect the Chairman for the next two years, until January 2015. Its current Chairman recently announced that he is running for reelection.

The nomination and election procedures are governed by the RNC's "bylaws", which is the name given to the rules that govern how any organization or corporation is run internally. In this case, nominations for the office of Chairman are made by the vote of a majority of the delegates from at least 3 states or territories. Several candidates for the office are typically nominated, and then the RNC members vote on whom they prefer. It often requires multiple ballots to reduce the number of candidates to two or three, whereupon one candidate finally wins the race by receiving a majority of 168 votes (85 total votes).

For example, on the first ballot there may be five candidates who win 50, 40, 25, 20 and 15 votes, with some members absent and therefore not voting. The candidates who received only 20 and 15 votes may then drop out, such that on the second ballot the other three candidates receive more votes each. This process is repeated until a candidate receives a majority of the votes.

When Are the Next Public Elections?

One aspect of politics that many people like, while others dislike it, is that politics never stops. The day after an election, the focus begins on the next election. Most politicians never take their eye off their approval ratings or the next election. Already the RNC and DNC (the committees for the two major political parties) are planning ahead for the next elections in 2013, with the hope of winning them.

New Jersey and Virginia are unusual in holding major elections in odd-numbered years, so in 2013 there will be campaigns and elections in these states. Why do New Jersey and Virginia do this? Probably to give greater power to the political machines, keeping them influential all the time.

Governor Chris Christie's stands for reelection in 2013, and the massive Democrat majority in New Jersey makes it difficult for him to win. His opponent may be Newark mayor Cory Booker, a rising star among Democrats who may one day run for president himself.

Christie and Booker must first win their party's primary in June in order to qualify for the ballot in November. There will almost certainly be other Democrats who oppose Booker for that party's nomination. Will anyone run against Christie in his primary?

There will be other state races of importance in 2013 in New Jersey. There will also be special elections as congressional seats open up around the Nation. It is expected that Obama will appoint John Kerry to be the new Secretary of State after Hillary Clinton resigns, and that will create an open U.S. Senate seat from Massachusetts. Republican Scott Brown, who recently lost reelection for his U.S. Senate seat, would then likely run to replace John Kerry.

Already congressmen must begin thinking about their races for reelection 2014, and the race for the next presidential election in 2016 has quietly begun too. On the Republican side, it is expected that Jeb Bush will seek and win the nomination, while Hillary Clinton seems likely to be the Democrat nominee.

Next: A Look at the Judiciary

With all the talk about politics and elections in the media, it is easy to think that elections are the only events that shape the future of America. But do not forget that elections directly affect only two out of three branches of government in the federal (and New Jersey) government. Federal judges never stand for election, and their work is done independently from the political process. Federal judges are nominated by the President and confirmed by the U.S. Senate, and in New Jersey the judges are nominated by the Governor and confirmed by the NJ Senate, but these judges continue to decide cases for many decades afterward without any reason to be concerned about elections.

Judges, courts and trials are not what most people think about when they hear the term "government", but courts and public trials may be as important in deciding the future of our nation. Elected politicians like to avoid the difficult issues, leaving it to courts to decide what really matters.

The most important trials in Anglo-American history have been by juries, and they have decided many of the fundamental issues that we take for granted. In trials, there are rules of evidence that limit what can be said or claimed. Most of what politicians says, and much of what is taught in public school, would not be considered reliable enough to present in a court of law at a trial. Demagoguery is not allowed; neither is most types of "hearsay", which is repeating what someone heard somewhere else. The basic rules of evidence have developed over hundreds of years to promote a truthful result.

The Salem Witch Trials, which are not on this list (but perhaps they should be), reached results considered to be unjust because witnesses were allowed to say in court that they had a dream or vision ("spectral evidence") convincing them that the defendant was guilty. Today that would be prohibited by rules of evidence.

Would you like to become a trial attorney one day?

The Top Ten Trials in American History

Here is a list of the ten most important trials affecting the United States, all of which were by some kind of jury (not necessarily a public jury):

1. William Penn (1670)
2. John Peter Zenger (1735)
3. Supreme Court Justice Samuel Chase (1804)
4. President Andrew Johnson (1868)
5. Boss Tweed (1873)
6. Sacco & Vanzetti (1921)
7. John Scopes (1925)
8. Colonel Billy Mitchell (1925)
9. Alger Hiss (1949)
10. President Bill Clinton (1999)

How many of those jury trials can you describe? For the impeachment trials (3, 4, and 10), the "jury" was the entire U.S. Senate.

Both Thomas Jefferson and John Adams felt strongly that jury trials were the best defense against government. Thomas Jefferson considered “trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” John Adams said it was a jury’s “duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Half of these important trials resulted in convictions; the other half resulted in acquittals. Here is my summary of the cases and their influence:

1. William Penn joined the Quakers in London, a religion disliked by the King. In 1670, Penn held a worship service and was arrested for allegedly disturbing the King’s peace. At trial, the jurors heard testimony, and the judge, as is still the custom, delivered jury instructions prior to its deliberations. The jury instructions included an order to find the Penn guilty.

But the jury refused to find Penn guilty. The judge angrily sent them back to continue deliberations. The jury returned again with its same "not guilty" verdict. The judge demanded “a verdict that the court will accept, and you shall be locked up without meat, drink, fire, and tobacco....We will have a verdict by the help of God or you will starve for it.” The jury went out three more times, and returned with the same verdict each time. Then it refused to deliberate any more and the judge fined and imprisoned them. Penn was also fined and imprisoned on a scurrilous new charge invented at trial (for donning a hat in the courtroom).

On appeal, the jurors won their independence and were released from jail, though that did not help Penn.

The impact of the Penn trial has been enormous in two respects. First, it established freedom of religion, which Penn brought to America in founding Pennsylvania a decade later. Philadelphia became the most populous city in the colonies, and the location for drafting the Constitution.

The case also established the principle of “jury nullification,” whereby a jury’s decision is final and dispositive even if it rejects the law. Jury nullification has been used frequently, as in acquitting defendants accused of violating the Alien and Sedition Act and the Fugitive Slave Act.

2. The John Peter Zenger trial in 1735 is the most important case ever for the media, particularly newspapers. He was a publisher accused of the crime of harshly criticizing the colonial New York governor. Zenger’s defense was that he (and everyone else) has the right to print the truth. But the judge instructed the jury that the law did not recognize truth as a defense to the charges. Under the law at the time, the jury had no authority to acquit Zenger based on the truth of his statements.

The jury acquitted him anyway, thereby establishing freedom of the press (and also a type of freedom of speech). This was another important example of jury nullification. To this day, England does not have the full freedom of speech and the press that Americans have because of the Zenger trial.

3. By 1804, Jeffersonian Democratic-Republicans had control of Congress and set their sights on removing Federalist Supreme Court Justice Samuel Chase. The House of Representatives impeached him, and trial began with the Senate as the jury. His prosecutor was John Randolph, a partisan Jeffersonian who was distantly related to the Federalist Chief Justice John Marshall. 25 out of 34 Senators (more than 2/3rds of the U.S. Senate at the time) were Jeffersonians, so conviction and removal of the Federalist Chase for his political biases seemed likely.

But the effort failed. During the trial Randolph himself criticized Jefferson over a separate issue, the infamous Yazoo land fraud in Georgia, an issue that split Jeffersonians. Meanwhile, the case against Chase amounted to little more than some intemperate remarks he made while sitting as trial judge in a grand jury proceeding. The Senators were unimpressed, and at most 19 out of 34 voted to convict on any of the charges, far short of the requisite 2/3rd.

The independence of the judiciary was established by this failed effort to remove a Supreme Court justice. However, the episode did encourage future justices not to engage directly in politics. No effort to impeach a Supreme Court justice has since made any progress.

4. President Andrew Johnson became the enemy of Radical Republicans who controlled Congress after the Civil War. President Johnson vetoed their legislation and even called their leaders “traitors”. Flush from winning the war, the likes of Republican Senators Thaddeus Stevens (PA) and Charles Sumner (MA) were not about to back down. Sumner, after all, was the fellow who once delivered a disrespectful speech against elderly South Carolina Senator Andrew Butler, whereupon his outraged nephew Preston Brooks beat Sumner senseless with a cane.

When the House of Representatives impeached President Johnson by an overwhelming vote of 126 to 47, his ouster appeared to be a fait accompli. President Johnson had violated the Tenure in Office Act by dismissing his Secretary of War, and he had been intemperate in his name-calling of key senators. In addressing the jury of 54 senators, the prosecutor referred to President Johnson as an “accidental Chief” and “the elect of an assassin.” Witnesses testified for both the prosecution and the defense.

The prosecutors – called “managers” in impeachment trials – were confident of victory. Manager Thaddeus Stevens described President Johnson as the “wretched man, standing at bay, surrounded by a cordon of living men, each with the axe of an executioner uplifted for his just punishment.” Manager John Bingham brought the public galleries to their feet with his oratory: “May God forbid that the future historian shall record of this day's proceedings, that by reason of the failure of the legislative power of the people to triumph over the usurpations of an apostate President, the fabric of American empire fell and perished from the earth.”

2/3rd vote was necessary for conviction, and it all turned on Senator Edmund Ross of Kansas. Like real jurors, he spoke to no one during the proceedings and no one knew which was he was leaning. But he voted “not guilty,” and President Johnson was acquitted by one vote. The "Radical Republican" Senators had lost, and never again regained their unprecedented power.

5. William Marcy “Boss” Tweed began as a volunteer fireman in New York who worked his way to the top of the Democratic New York City political machine by 1863. He developed a corrupt system known as the “Tweed Ring” that faked leases, demanded kickbacks, performed unnecessary repairs and generated other phony expenses that cost New York City from $75 million to $200 million, a huge amount of money at the time. Famed cartoonist Thomas Nast, who created Uncle Sam and the elephant and donkey for the Republican and Democratic Parties, frequently attacked Tweed in his cartoons.

Eventually, Democratic federal prosecutor Samuel Tilden brought an indictment against Tweed, who was defended at trial by wealthy Republican Elihu Root in 1872. Tilden defeated Root and obtained the conviction, which catapulted Tilden to national prominence and became the Democratic nominee for president in 1876. He won the popular vote by a hefty 250,000, but the Republicans maneuvered to give Rutherford Hayes the White House based on a narrow lead in electoral college votes and a promise to end Reconstruction. Elihu Root, meanwhile, became an imperialist who later advocated entry by the United States into the League of Nations.

6. Sacco and Vanzetti were two anarchists from Italy. Anarchists believe in a dangerous philosophy that there should be no government, and some anarchists believe in the violent overthrow of any established ruling entity. These anarchists had dodged the draft for World War I and were tried in 1921 for an afternoon robbery and murder of a shoe factory paymaster and a security guard as they carried a $16,000 payroll. Liberals in America decried trying individuals for their beliefs rather than their actions, and questions about the fairness of such a trial in Boston were raised from the beginning. They had skilled defense counsel in a famous labor attorney, but no Italians were included in the jury (none may have been in the jury pool). The defense counsel eliminated every businessman from the jury.

Witnesses for the prosecution were weak, with one testifying that the murderer spoke good English (the defendants did not). The prosecution only identified one bullet as being from Sacco’s gun, with no explanation as to the source of the other three bullets found at the scene. The stolen money was never found.

The defendants took the witness stand in their defense, but were subjected to relentless questioning about their political beliefs. Defense counsel repeatedly objected to such questions, but the judge overruled the objections and allowed them. There is widespread agreement that the judge never should have permitted so much questioning about political beliefs at the trial.

The jury returned a guilty verdict after more than a day deliberations. (At an earlier trial, a different jury had convicted them of a similar crime.) Faced with international protests against the prosecution, the Massachusetts governor appointed a commission to examine the trial and evidence. Throughout the 1920s the case was a flashpoint for protests. Finally, after the commission announced it agreed with the verdict, Sacco and Vanzetti were executed in 1927.

Vanzetti, who sported a distinctive handlebar mustache, maintained his innocence to the end. His final words to the judge before execution were these: “I would not wish to [a dog or snake] what I have had to suffer for things that I am not guilty of. But my conviction is that I have suffered for things that I am guilty of. I am suffering because I am a radical and indeed I am a radical; I have suffered because I was an Italian, and indeed I am an Italian; I have suffered more for my family and for my beloved than for myself; but I am so convinced to be right that if you could execute me two times, and if I could be reborn two other times, I would live again to do what I have done already.” Does that persuade you of his innocence?

Among liberals, sympathy has continued for Sacco and Vanzetti ever since. Much is made of a confession by another death row inmate to having perpetrated the crime. But the judge found that unreliable. But the judge did not seem to be entirely impartial; earlier he had criticized a jury for acquitting an anarchist, and seemed determined to do what he could to end anarchy in America.

Fifty years after the executions of Sacco and Vanzetti, in 1977, Massachusetts Democratic governor and future presidential candidate Michael Dukakis signed a resolution apologizing to them and establishing a day in honor of them. However, he did not pardon them, and many remain convinced of their guilt. Dukakis’ soft position on crime was a major reason for his defeat by the first President George Bush in 1988.

7. John Scopes was merely a young public school teacher in Tennessee when he unwittingly became a test case for promoting evolution in American schools. Tennessee had a law against teaching human evolution, and the American Civil Liberties Union (ACLU) wanted to overturn it. It enlisted the top criminal attorney of the day, Clarence Darrow, to serve as Scopes attorney. As crafty as the day is long, he arrived in Tennessee armed with his bag of tricks.

William Jennings Bryan, the former presidential candidate and Secretary of State, had oratorical skills second to none. His “Cross of Gold” nomination acceptance speech in 1896 is considered one of the greatest political works in American history. He united the Populist and Democratic Parties then and laid the foundation for the takeover by the Democratic Party of American politics 36 years later.

After witnessing the horrors of World War I, Bryan became convinced that the teaching of evolution was leading society to ruination through war. “Survival of the fittest” provided an intellectual justification for the brutal killing of other nationalities and races. Bryan foresaw the ethnic cleansing that grew to its horrible culmination in the Holocaust.

To avoid growth of the mistaken belief in “survival of the fittest” among humans, Bryan defended the Tennessee law and its application to Scopes, which imposed a $100 fine as the penalty for teaching that humans had evolved from apes. Darrow agreed to take the witness stand to testify for teaching human evolution if Bryan also took the witness stand to allow Darrow to ask him questions. Bryan testified first and performed well. So well, in fact, that Darrow reneged on his promise and forced Scopes to plead guilty to end the case. With that the trial ended, and Tennessee’s law remained in effect for another half century. For nearly 100 more years Tennesee public schools taught little evolution, and George W. Bush won the presidential election in 2000 by carrying this home state of his opponent, Al Gore.

But the media wrote the history about this trial. A famous liberal reporter at the trial, H.L. Mencken, published extremely one-sided articles that would make today’s media blush. He excoriated Bryan at every possible turn, trying to make him look foolish. When Hollywood got into the act with a movie called “Inherit the Wind,” it imitated Mencken’s bias. Misinformed, many think Scopes and the evolutionists won the trial, but the real result was the opposite.

8. Colonel William “Billy” Mitchell dropped out of college in 1898 to serve in the Spanish-American War. Afterwards, America stayed out of wars until 1917, when Mitchell was touring Europe as an observer. By then he was considered too old to be trained on the new airplanes that were just being considered, but he learned to fly through private lessons of his own. When the United States entered World War I, Mitchell was the first American to fly over enemy lines. In 1918, he led a large bombing attack on St. Mihiel on the western front in Europe. An account of the battle is available online.^[1]

After the war he devoted his efforts to advocating greater use of aviation in the military, and criticizing those who resisted the change. In 1921 and 1923 Mitchell demonstrated how easily air power could sink ships by bombing old battleships and sinking them. The embarrassed military brass sent him on a trip to Asia, but when Mitchell returned he predicted that Japan would ultimately attack us as it did at Pearl Harbor.

In September 1925 a military airship crashed and killed many on board. Mitchell published a diatribe harshly criticizing his superiors, even accusing them of treason in ignoring the need for good military aviation. He was swiftly brought before a military court, known as a court-martial, for insubordination. He was tried for seven weeks.

Military courts lack the protections guaranteed to civilians in ordinary courts. The jury could not reach a unanimous verdict, which in a federal criminal case would prevent conviction. One juror, widely thought to be the future General Douglas MacArthur, voted for acquittal. But he was outvoted and Mitchell was convicted and sentenced to a humiliating loss of rank and pay. President Calvin Coolidge intervened to restore half his pay, but Mitchell quit the military instead.

After Japan’s air power attacked and sunk our fleet at Pearl Harbor, Mitchell’s views were vindicated. By then he had passed away, but the military restored his rank and President Truman honored him with a medal posthumously.

9. Alger Hiss had denied he knew Whittaker Chambers, a former American communist who claimed that Hiss had been passing him State Department secrets for years. Obscure Congressman Richard Nixon was convinced that Hiss was lying and questioned him when he appeared before the House Un-American Activities Committee during the Cold War in 1948. Nixon intensely disliked Hiss, who came from the wealthy background of political connections that Nixon initially lacked. Nixon’s pursuit of Hiss catapulted Nixon’s career on a path that would eventually carry Nixon to become president.

Both Hiss and Chambers testified before the House Committee, contradicting each other. One had to be lying. When Chambers ultimately produced typed documents of State Department information and claimed they came from Hiss, a federal prosecutor in Manhattan indicted Hiss for perjury.

But Hiss could afford the best attorney and had the most impressive array of character witnesses ever assembled. It included two U. S. Supreme Court justices, a former Solicitor General, a former Democratic presidential candidate (John W. Davis) and a future one (Adlai Stevenson). Hiss’ jury selection was also superb: the foreman proved to be sympathetic to the liberal and perhaps even communist movement in America.

Hiss did well on the witness stand in his defense, but his attorney probably erred in putting his wife on. Hiss's attorney was blistering in his cross-examination of the prosecution’s star witness, Chambers himself, who admitted that he had worked for the communist cause in America.

The jury could not agree on a verdict, splitting with eight in favor of conviction and four against it. Despite testimony that the unlawfully leaked documents were typed on Hiss’ typewriter, the four were not convinced beyond reasonable doubt.

As is typical, the government then brought the case for retrial. Prosecutions do better the second time, learning from its mistakes. The judge allowed a broader range of questioning. Hiss's new defense counsel was weaker, conceding that the leaked documents were typed by the typewriter found in Hiss’ possession, but disputing that he typed them. Inexplicably, Supreme Court Justice Frankfurter did not testify for Hiss in the second trial.

The defense relied heavily on testimony by a expert witness who was a psychiatrist, who painted Chambers as a pathological liar. But the prosecutor destroyed that expert witness in one of the most famous cross-examinations in American legal history. Excerpts from the trial transcript are available online.^[2]

Hiss maintained his innocence until he died, despite the eventual release of secret Soviet files apparently identifying him as a spy. Perhaps Hiss felt he could not go back on his prior statements, or perhaps he remained true to communism in protecting the movement. The case helped define American politics for forty years, propelling Nixon to the Vice Presidency in 1952, Barry Goldwater to the Republican nomination for president in 1964, Nixon to the White House in 1968, and ultimately Ronald Reagan to the White House in 1980, where he awarded Chambers a posthumous Medal of Freedom.

10. President Bill Clinton was riding high in the polls and was ready to pick his successor for the White House by late 1998. His personal popularity and a strong economy enabled the Democratic Party to do surprisingly well in the mid-term elections, and President Clinton was seeking to leave a lasting legacy.

Then the House of Representatives impeached him for making false statements under oath, which is perjury, and trial was scheduled for the U.S. Senate in 1999. First Lady Hillary Clinton accused her opponents of being part of a “vast right-wing conspiracy” against her husband. The Democratic Senators all lined up behind President Clinton, promising to vote for acquittal.

Republicans enjoyed a majority in the Senate but lacked votes anywhere close to the requisite 2/3rd majority to convict. President Clinton was a lame-duck at that point anyway, and the real battle was over his ability to influence politics beyond his term.

The managers of the impeachment presented their case, but the Senate prevented them from calling key witnesses such as Clinton’s closest aids. The procedural rules hamstrung the trial and served to protect the president. Without the presentation of the full case, President Clinton easily survived the final vote.

But the victory was Pyrrhic. The Democratic presidential nominee in 2000, Al Gore, felt he had to distance himself from Clinton and that probably made the difference on Election Day. For 5 or so years, Clinton had little success in campaigning for candidates, failing (for example) in trying to help Governor Gray Davis in California prevail in his recall election. Hillary Clinton, pollsters choice to run in 2004, apparently felt it was too soon to make an attempt. When she did run for her party's nomination in 2008, she was defeated. The political ramifications of the impeachment trial lasted for at least a decade.

Homework

For the homework, we will have a ten or fifteen-question quiz on only this lecture, which I will send by email in a day or two.

References

1. ↑ http://www.au.af.mil/au/awc/awcgate/ww1/stmihiel/stmihiel.htm
2. ↑ http://law2.umkc.edu/faculty/projects/ftrials/hiss/hisstrialtranscripts.html