I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director. Witch Hunt!

Trump Tweet, circa June 16, 2017[1]

The President claims he’s the victim of a witch hunt. We know something about those things, don’t we? At least that’s what you’ve said, from time to time. So dig back in your files, and find out what people actually did when they hunted witches. You don’t need to cover the whole process. I know it’s arduous and violent. Just tell me what’s needed to start one. And stay away from the dictionary! I don’t want to hear what some modern lexicographer thinks. I want to know what the old guys really did. We have a book about that, don’t we?

G. Sallust, by phone, June 16, 2017[2]

This is Phil, erstwhile blog philosopher and today’s lecturer. G. Sallust called me the other day, and said what I quote at the top of this piece. And he’s right. We do have a book. It’s from the 15th Century and is called the Malleus Maleficarum, or, in English, The Hammer of Witches.[3] [Actually it’s a modern and complete translation of the old Latin.] We spent a lot of time in 2011 reading and writing about it to see how the jurisprudence worked, and how ancient wisdom might be adapted to today. Not surprisingly, we found parallels between the ‘enhanced interrogation” used on suspected terrorists after 9/11 and the tactics of the witch hunters.

This was important, at least in my view, because the old witch hunters were really good at getting confessions. By one account many thousands of witches were burned in Europe, and around four thousand were hanged in England.[4] Why? Because they confessed to flying; striking livestock and fields barren with a curse; having sex with the devil; causing a man’s penis to disappear with magic; or other improbable things. The hunt didn’t seem to yield truth; only fabricated stories. So why did the accused ‘fess up’ to things that were, basically, impossible?

Why, indeed? I would say it was the torture that did it, coupled with the brainwashing, but that’s not our topic for today. G Sallust has asked a more preliminary question. What really was necessary to get that juggernaut of madness rolling? What legal process was involved? The answer: Not much.

You see, according to the old hunters there were three ways to start a witch hunt. One person could denounce another by filing a paper with some court specifying what the other had done, and offering to testify as to the specifics; or one could simply denounce another without offering to testify, apparently on the ground that everybody knew so-and-so was a witch; or the authorities could open a general investigation [an ‘inquisition’] of witchcraft in an area, because there were rumors of it all over the place. In that last situation it would be up to the authorities to bring the accusations.[5]

The witch-hunters really didn’t like option 1, by the way. The problem with laying charges is that the charging party has to justify them. There could be penalties if the facts didn’t hold up, and who knew what might happen once the lawyers got involved?[6] Instead they vastly preferred an approach where the accuser didn’t have to prove anything, or an independent party took on the burden of making the case. If a person denounced someone else to protect the Faith or the common good, the witch hunters thought he should not “become subject to penalty even if he fails in his proof.”[7] And, of course, if someone is tried by inquisition, then no individual is responsible for that. The judge [or whoever] instituted those proceedings “not at the insistence of some party, but by virtue of his office.”

Speaking of lawyers, in the 15th Century defendants in witchcraft trials didn’t get to choose their own advocates. The judge did that. And in doing it he was instructed to avoid “litigious, evil spirited persons” who might be “fussy about legal niceties.”[8] So the defendant got a limp lawyer to protect him [or her] from the torture chamber.

Does any of this sound familiar? Well, let’s see:

  • So far no one has sued Donald Trump for being “too close to” the Russians, or for firing the FBI Director, or for anything like that. At least I don’t know of any such litigation, civil or criminal. So, so far nobody has proved anything in court.
  • The 15th Century Witch Hunters would have approved. They felt that people who denounced others for the “public good” should be able to do so without repercussions. The witnesses especially needed to be protected from the accused. They were scary people, the accused – probably witches – and were dangerous to cross. So obviously if a witness didn’t want to be known, he [or she] wouldn’t be.
  • And how do today’s hunters protect accusers? Well, one way is by allowing them to anonymously leak information, or allegations really, to the media, with a pledge that their identity won’t be revealed. You may have noticed that there’s a lot of that going on, especially in the Washington Post and the New York Times.
  • And is there an inquisition out there? Well, if by that you mean an official inquiry prompted by rumor, innuendo and anonymous sources, there might be several. We have, of course, numerous Congressional committees looking into this or that, plus now a special counsel building a fiefdom over in the Department of Justice.

So in my opinion – and it’s only an opinion – President Trump is correct in part. What we have here is the start of a traditional witch hunt, an auspicious beginning that even the hunters of the 15th Century would have appreciated. We have rumor and innuendo, anonymous sources insulated by their anonymity, vague allegations that come and go, and now official inquiries [including one by a special counsel] that can go on until somebody or something breaks. For a witch hunter those are good things.

But it’s not perfect. This is America and a big part of the political class has taken on some wealthy people, so everybody has lawyers. The 15th Century witch hunters really didn’t like lawyers. Lawyers could be evil spirited and overly fussy about legal niceties. And that’s the way they are today for sure. Also law enforcement here is limited in the way it treats prisoners. Currently no torture is allowed.

So I guess we don’t have a full-blown witch hunt, yet; defendants are better protected than in the 15th Century, and nobody has confessed to improbable things; but it’s a good start, and the future is bright … for the media.

[1] This is currently reported by Twitter at https://twitter.com/realDonaldTrump/status/875701471999864833 .

[2] That’s what was on my voicemail, sanitized a bit for language. You’ll have to take my word for it. I don’t save voicemails.

[3] See Christopher S. Mackay (translator], The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) (hereafter cited as Hammer at p. __). The book was written by two [apparently crazed] Dominican friars, Jacobus Sprenger and Henricus Institoris. See Hammer at Introduction, p.2 – 3.

[4] See Sargant, Battle for the Mind (Doubleday, 1957) at p. 198 – 199.

[5] See Hammer at p. 502 – 503: “The three methods … consist of denunciation and inquisition. The first is when someone accuses someone else before a judge with a charge of heresy or abetting it, offers to prove this and writes himself down for the penalty of retribution if he does not prove it. The second method is when someone denounces someone else without offering to prove it or being  willing to participate, and instead states that he is making a denunciation through his zeal for the Faith or on account of [penalties imposed by religious or secular authorities] . The Third is the method by inquisition, that is, when there is no accuser or denouncer, but the general rumor in a certain city or place about there being sorceresses.  In that case, the judge has to institute proceedings not at the insistence of some party but by virtue of his office. “

[6] See Hammer at p. 503: “It should be noted that the judge really should not allow the first method of proceeding, because this method is not customary in a case involving the Faith … because it is quite dangerous for the accuser on account of the penalty of retribution that is imposed when he fails to make good the proof, and because it is quite subject to legal disputation.”

[7] Id. at p. 504.

[8] See Hammer at p. 530 – 531: “As for the first point, it is noted that an advocate is not assigned according to the pleasure of the denounced person, for instance because he was inclined to have one particular person. What judges should make every provision against is granting a litigious, evil-spirited person, who could easily be corrupted by money as such people often are found to be. Rather he should grant to the accused an upright person who is not suspected of being fussy about legal niceties.”