Hitler, Burr and Trump: Show trials put the record straight for history but can also provide a powerful platform for the defendant

FILE: The E. Barrett Prettyman Federal Courthouse located at 333 Constitution Avenue, N.W., in the Judiciary Square neighborhood of Washington, D.C. (Photo by AgnosticPreachersKid – Own work, CC BY-SA 3.0)

The trial of Donald Trump on charges that he conspired to undermine the peaceful transition of power will likely be a show trial – but not in the usual sense of the words.

The phrase “show trial” has two connotations. In the most common understanding of the term, those connotations are negative: Show trials in authoritarian regimes are sham trials used for propaganda purposes where the outcome is predetermined and the defendants condemned as traitors to the motherland.

Think of the show trials mounted by the Baathist regime under Saddam Hussein, the show trials of Josef Stalin’s dictatorship, or those of the Chinese Communist Party under Mao Zedong. These sham trials were used to persecute enemies and consolidate power through the fear they generated.

But trials that capture widespread public attention and expose wrongdoing by political or business figures may also produce highly constructive and positive outcomes as well. They can promote accountability for crimes against the state or against humanity.

Yet even these positive show trials, meant to affirm the laws and values of a democracy, can end badly, as with one prosecution in Germany in the mid-1920s – of the young Nazi party leader, Adolf Hitler, who had led an unsuccessful revolt to overthrow the country’s democratic government.

Prosecuting war crimes and corruption

As international law scholar Martti Koskenniemi has astutely noted, political show trials may be useful “for establishing an impartial account of the past and for teaching younger generations of the dangers involved in particular policies.” Political trials that provide the public with a compelling narrative about crimes against the public trust can therefore have positive consequences for a democracy.

The Nuremberg trials after World War II highlighted Nazi atrocities to the world, the 2002 trial of former Serbian President Slobodan Milosevic exposed his war crimes, and the trials of Rwandans held to account those who engaged in the mass slaughter of 800,000 Tutsis and Hutus. These trials served as an opportunity to expose the truth about the defendants’ actions and to hold them accountable for those actions for all the world to see.

Show trials are not only useful for exposing war criminals, however. In democracies, show trials of political officials – defined as such because they captivate public attention – promote the rule of law and order to a very wide audience.

Korean President Park Geun-hye was indicted and charged with high-profile corruption charges and convicted of the abuse of power in 2018; she was later pardoned. The high-profile trial of Israeli Prime Minister Benjamin Netanyahu has found him accused of accepting bribes and breaching the public trust – that trial is ongoing. And after he left office, former French President Nicolas Sarkozy was convicted in 2021 and imprisoned for illegal campaign financing.

These are but a few examples of heads of state in functioning democracies who have been held to account in trials that have riveted the public’s attention.

Even the U.S. has a history of political show trials.

In 1807, then-President Thomas Jefferson became personally involved in promoting the prosecution of his own vice president, Aaron Burr, for treason. Burr was Jefferson’s political rival: He had challenged Jefferson for the presidency in a fight over electoral college votes in the House of Representatives.

Burr’s defense counsel claimed that the fairness of Burr’s trial was compromised by widespread news coverage of the event – an issue that was ultimately decided in the U.S. Supreme Court, which held that exposure to news coverage did not compromise the trial. Burr was acquitted.

But there is a darker outcome lurking in show trials.

Hitler’s trial fueled rise to power

The facts underlying many political trials arise in a historical context. The interpretation of that context – let alone the very facts of the history – may be disputed.

Although comparisons with Hitler are largely considered out of bounds when discussing current politics and politicians, it’s relevant to any discussion of high-profile political trials that the future Nazi dictator’s rise to power was fueled in large part by a show trial.

In 1923, Adolf Hitler led an effort to foment revolution in Bavaria. Known as the Beer-Hall Putsch because it literally began in a beer hall, Hitler and his followers sought to lead a revolt against the governing German Weimar democracy. His effort failed and he was tried for the crime of subverting the constitution of Germany.

But in the 1924 trial, presided over by a judge sympathetic to the Nazi agenda, Hitler used the courtroom as a platform, writes law professor Douglas O. Linder, “to showcase his oratorical skills and promote his views to as wide an audience as possible.”

As Hitler used the trial to argue that German institutions were corrupt, his popularity grew substantially. Historian David King writes in his book about the trial that “the incident caused headlines all over the international press, and Hitler’s name became known thereafter. He could not have bought the kind of publicity he got at the trial even if he wanted to.”

And even though he was ultimately convicted, Hitler used his time in prison to write “Mein Kampf” – his manifesto for Nazism – and to reinvigorate his political movement by building the Nazi party platform. By 1933, Hitler was named chancellor. After the staged Reichstag fire, the government capitulated to Nazi party rule, abolished elections and succumbed to Hitler’s dictatorship.

The United States has a justice system that is far more impartial than the German judicial system during Hitler’s rise to power.

But the history lesson remains relevant: Trials within a political context and the charging of political crimes have risks. Though they may be necessary to uphold the rule of law, these types of show trials may also provide the defendant with the opportunity to dispute the historical record and challenge the very governmental authority holding them to account.

Donald Trump has already begun his version of that effort.

Significant political consequences

With every indictment, Trump has become more popular with the GOP’s electoral base. His social media posts clearly reflect his efforts to undermine faith in the rule of law and in the justice system.

Most recently, Trump has made statements that seem aimed at goading U.S. District Court Judge Tanya Chutkan, who is overseeing the Jan. 6 case, into holding him in contempt of court. A public post by Trump stating, “If you go after me I’m coming after you,” seems tailor-made to convince a judge that the defendant is prepared to intimidate witnesses and disrupt the administration of justice.

History tells us that trials of political figures like Donald Trump – if he is found guilty of the crimes charged – may promote the rule of law and democracy.

But history also shows that trials may produce significant political consequences that reverberate well beyond the simple administration of justice.

Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.