Lacking Virtue: The Prosecution of Thomas Cooper
When looking at virtuous prosecutions, it helps to know what a prosecution looks like that lacks virtue. President John Adams launched seditious libel prosecutions of questionable virtue.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
*In the District of Massachusetts, a man was arrested on nine counts of possessing pit bulls for the purpose of fighting them. A search located significant other items used to prepare the dogs for fighting.
*In the Eastern District of Virginia, a man was indicted for attempting to shoot people at a church. He was arrested at the door with services ongoing armed with a semi-automatic weapon. Police began searching for him after a citizen brought their attention to the man’s social media posts.
*In the Southern District of Florida, a man was indicted for smuggling immigrants into the United States. The man arranged for people from South America and the Caribbean to arrive in Florida via boat from the Bahamas. In at least one journey, five people died.
Virtue and Sedition Prosecutions
With an understanding that prosecutors should act virtuously when making prosecutorial decisions, it is important to identify instances when prosecutors do not act in a virtuous manner. The further back in history we go, the easier it gets to observe with a clear eye. This week’s issue travels back to the early republic period when the federal government prosecuted people for criticizing it. Among those prosecuted was Thomas Cooper, a newspaper editor and attorney. Mr. Cooper had sought a position with the federal government but was denied. He began a series of letters that appeared in newspapers, that criticized the Adams Administration policies.
In the late 1790s, the United States faced a national security threat from France. There was a concern that France would go to war against the United States and that there was a large proportion of the US population that would accept this outcome. President John Adams and the Federalists perceived any critical speech against their policies as undermining US national security. They believed it had to be stopped. To stop it, they introduced legislation to criminalize untrue statements critical of the government. With the legislation pending, the government initiated common law prosecutions. Those prosecutions failed. Thus, once the Alien and Sedition laws became law, the government wasted little time utilizing it.
Cooper’s initial article appeared in June 1799. Philadelphia’s leading Republican newspaper, the Aurora, republished the article. In the piece, Cooper lamented the direction of Federalist polices. The piece reached President Adams who reacted angrily. “A meaner, a more artful or a more malicious Libel has not appeared. As far as it alludes to me I despise it. But I have no doubt it is a Libel against the whole Government and as such ought to be prosecuted.” This was all the encouragement Secretary of State Timothy Pickering needed.
Pickering zealously advocated the Federalist cause and relished the opportunity to prosecute the Republican press. Much of his day was spent reviewing the news, searching for sedition. Pickering knew that Cooper had sought and been refused a government job. He used this to bait Cooper. Writing anonymously, Pickering denigrated Cooper. Rising to the bait, Cooper responded by further criticizing the Administration’s policies. Pickering and United States Attorney for Pennsylvania William Rawle pursued the prosecution.
The trial began on April 19, 1800. Rawle told the jury that the case was about “foul and infamous falsehoods” aimed at the officials the people elected. It was the government’s duty to pursue the case if for no other reason than it had to make Cooper an example for the public. Such speech was not to be tolerated. If the government did not do something, the nation’s security would devolve into anarchy, like it had seen during the Whiskey Insurrection five years prior. Following the opening statement, Rawle presented his lone witness. One of Cooper’s neighbors testified that Cooper walked into the house, saw the article and spontaneously announced that he had written it. Consistent with cross examination practices of the day, Cooper only asked if they frequently joked about political events. The neighbor said they did.
As an attorney, Cooper represented himself. He argued his statements were factually true and that any critiques of the Administration were the result of ideological differences. This was political speech, not sedition. To prove the truth of his statements, Cooper subpoenaed members of Congress to testify about the Adams Administrations policies. The Court refused to enforce the subpoenas stating that if the witnesses appeared voluntarily, they could testify. Of course, none appeared. Cooper also sought copies of Adams’ speeches. Rawle and Pickering refused to provide them. Nonetheless, Cooper managed to submit newspaper copies.
With the evidence completed, Rawle and Cooper both presented their closing arguments. Rawle characterized the case as who was better qualified to opine about the Administration’s policies: Cooper or the President? Rawle reiterated that it was his duty to bring the case and no more. Cooper returned to his theme that this was merely a political disagreement. Ultimately, the jury convicted Cooper.
Did the prosecution act virtuously when pursuing Cooper’s case? Today we see the Alien and Sedition Acts as a blatant violation of the freedom of speech. At the time, however, no one thought the freedom of speech meant that people could say most anything without consequence. Yet even this seemed to go too far as an attack on political opposition. In this sense, it was not temperate but a passionate response to perceived threat. Nor was this a moderate response. The statements did not threaten the government or its overthrown. Instead, the government pursued the matter aggressively. Perhaps adopting a course of silence, allowing their opponents to speak their minds, would have better served the Administration.
At the same time, the prosecution does exhibit some virtues. It was industrious. The government wasted little time pursuing the prosecution. They also acted resolutely and sincerely. When the government said it would pursue these cases, it did without hesitation. From the government’s perspective, they honestly believed they were necessary. They thought this was the best way to address the perceived threat.
Ultimately, however, where the prosecution fails to be virtuous, are in the areas of humility and justice. The prosecution lacked humility, instead, as Rawle argued, this was a matter of qualifications. Cooper, according to the government, could not possibly have a relevant or meaningful position. How could Cooper compare to President Adams, who had been vice-president and a leading figure in the Revolution? Implied in this was a sense that no opinion, other than that of the Administration, held any value. A more humble response might have been to listen to Cooper’s perspective.
More importantly, however, Cooper did not deserve to be prosecuted. As an initial matter, Cooper’s assessment of the Adams Administration’s policies were opinions, not facts. They did not advocate the overthrow of the government. They did not instigate any violence. They were simply one observer’s opinion. To make the case even less prosecution worthy, the government instigated the second set of Cooper’s statements. It planted an anonymous article and provoked Cooper’s response. It then used the response as a basis for prosecution. Finally, the entire law was an intemperate and extreme response. It was not considered or measured. It was not based on reason. All of this became evident in the 1800 presidential election when Thomas Jefferson used the sedition prosecutions to garner public opinion in his favor and win the first contested presidential election in US history.
The trick to all of this is perception. What one views as just, another may perceive as unjust. What an individual deserves may also lead to disagreement. Further, whether a prosecution is sincere or not can be a matter of perception and can be influenced by the information available. Whether a response is temperate can also be the subject of reasonable differences. While this virtues provide a good starting point to evaluate criminal prosecutions, they are likely not the end.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!