Political Trials 

By Roger Berkowitz

In the final chapters of Eichmann in Jerusalem, Hannah Arendt worries that the very strength of the Israeli Court in its trial of Adolf Eichmann—its fairness and its fidelity to law—prevented the court from understanding that Eichmann’s unprecedented acts required a political rather than a legal response. Eichmann himself argued that if he were guilty, it was of “aiding and abetting” in the commission of horrific crimes, that he himself had not committed any overt act of murder or transportation. And Arendt notes that the Israeli trial court seemed to agree with Eichmann, arguing that under Section 23 of the Israeli Criminal Code, Eichmann’s crimes “were mainly those of a person soliciting by giving counsel or advice to others and of one who enabled or aided others in [the criminal] act.” For Arendt, the idea that Eichmann was merely guilty of “aiding and abetting” crimes of mass murder and genocide was a fundamental mistake that derived from an unwillingness to understand that Eichmann’s crimes were, as unprecedented, outside the framework of the laws. What was needed, she argued, was a judgment at recognized that Eichmann’s guilt was not founded on his having violated existing laws; rather, Eichmann’s guilt was that he had done acts that were simply irreconcilable with human society. He needed to be killed, Arendt argued, because he did not deserve to be part of the human race. 

In her own judgment of Eichmann, Arendt refuses to find him guilty of violating laws, but argues that he must be killed for having done acts that disqualify him from the human community. Her judgment is political. Politics, she writes, “is not like the nursery; in politics obedience and support are the same. And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations . . . we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.” The reason Eichmann must hang is that no human being must be expected to share the earth with him. He must hang, in other words, because what he did was so horrific that it must simply be rejected, eradicated, and said no to. This does not mean it should be forgotten, not at all. Rather, the world in which Eichmann’s crimes could and did happen must simply be said no to. In short, Eichmann must hang because his crimes are irreconcilable with a civilized world.

It is timely to recall Arendt’s political judgment of Adolf Eichmann as the United States Congress begins impeachment proceedings against President Donald Trump. As Rob Goodman argues, when the Founders of the U.S. Constitution debated impeachment, they relied on their model for the English impeachment trial of Warren Hastings, the  first British governor-general in India. The advocate bringing the charge of impeachment in Parliament was none other than Edmund Burke, the conservative political thinker. Burke’s conservatism led him to be highly suspicious of imperialist rule and Burke was infuriated by Hastings use of immoral means to rule India. 

Aside from the result, Hastings survived his trial, what matters today in recalling Burke’s prosecution of Hastings, is that Burke argued that impeachment must be seen to be a political and not a legal act. Goodman retraces Burke’s argument to offer a warning against those who would argue that impeachment must proceed according to strict legal norms. As Arendt understands when confronted with Adolf Eichmann, Burke also saw that there are times when the fate of the republic hangs not on fidelity to laws but on a deliberative judgment about the core values that unite us as a people. Goodman writes:

For the classically educated Burke, the difference between impeachment’s legal and political aspects tracked onto the distinction between the two main forms of rhetoric: judicial and deliberative. Following a long tradition, Burke held that these are not simply two kinds of speech that happen in different forums, but two distinct ways of reasoning together in public. Judicial rhetoric is oriented toward the past actions of the accused; deliberative rhetoric is oriented toward future events that directly concern the people deliberating. In a judicial impeachment, the guiding question would be, “Did Hastings break the law?” In a deliberative impeachment, it would be, “What are the likely consequences of convicting Hastings for the empire and its people?”

To Burke, these were not morally interchangeable questions. He followed Aristotle in considering deliberative rhetoric “nobler and more worthy of a citizen.” He thought that legislatures could sometimes rise to the challenge of deliberative thinking, but that they were constantly tempted to fall into the rote, narrow, and unimaginative confines of legalism. In a speech on India four years before the start of the trial, Burke complained, “It has been a little painful to me to observe the intrusion into this important debate of such company as quo warranto, and mandamus, and certiorari: as if we were on a trial about mayors and aldermen and capital burgesses … matter of the lowest and meanest litigation.” Legal reasoning was useful in its own sphere. Beyond that, it threatened to “degrade the majesty of this grave deliberation of policy and empire.”

In the Hastings trial, Burke repeatedly pressed and repeatedly lost this argument—not least because the members of the House of Lords who sat in judgment followed the lead of the professional judges among their number. Questions to witnesses on Indians’ opinions of Hastings’s administration, on whether Hastings’s methods of tax collection produced “more evil, or less evil” for India, and on whether the precedent of his acquittal would “let loose rapine and spoil upon the subjects of government” were all ruled out of order. Under a legal model of impeachment, those rulings were all defensible. But Burke was also reasonable to believe that their exclusion did in fact “degrade” the trial.

What was lost under the judicial model was not simply evidence, but a quality of public thinking—a quality that Burke referred to as “enlargement” or “expansion.”