The trial of Mohammed Morsi is a political trial designed by the Egyptian authorities to disgrace, delegitimise and dispose of the Muslim Brotherhood from the Egyptian political landscape. In a seminal study widely regarded as the most definitive account of the political trial, the Frankfurt school jurist Otto Kirchheimer regarded the political trial as a strategic mobilisation of the devices of law and justice to attain political ends.
“The classic political trial”, Kirchheimer argued, is one in which the regime “attempt[s] to incriminate its foe’s public behaviour with a view to evicting him from the political scene”. Morsi’s trial is a classic political trial designed to evict Morsi and his movement from the Egyptian political space.
Political trials are inevitable consequences of revolutions. From the English and French revolutions in the 17th and 18th century to the Chinese and Iranian revolutions in the 20th century, the courtroom provided a convenient space for a ritualised elimination of former regimes.
Courts are mobilised not so much to eliminate the defunct regimes but to clarify, rationalise, justify and finally authenticate the revolution in an act of judgment. This is what is at work in Morsi’s trial – the use of the courtroom to validate and authenticate a contested revolution. The court is not concerned with the determination of guilt and innocence so much as the rationalisation and justification of the events of July 3, 2013.
A revolution, not a coup d’etat?
The rhetoric of law and order, terrorism, and national security are all smokescreens for the power struggle between the Muslim Brotherhood and the military-backed regime. Beneath the rhetoric of terrorism and national security, there are the unfathomable purposes of history and power – a history of a botched revolution; conflicting accounts of what happened on 3 July 2013 (a coup d’etat, a counter-revolution or a second revolution); and the violence and crackdown that followed. The trial reduces these complex historico-political events into an either – or binary proposition that fits the self-referential logic of law.
The charges against Morsi and others – “incitement to violence” and “conspiracy to commit terrorism” – are charges carefully chosen to serve as fulcrums – narrative anchors in which to ground the regime’s pedagogic stunts. The trial provides the event – the stage, the language, and the choreography – that lends bodily form, as Alexis De Tocqueville once noted, to the pedagogic enterprise.
As a truth-bearing platform with superior ability of image formation and saturation, the trial gives juridical reality and an appearance of neutrality and objectivity to the narrative of the state.
Within its own self-referential logic, the trial weighs the charges, assigns blame and attributes responsibility for the events alleged by the prosecution. It does not take account of the political and historical war that rages just beneath the invocation of its discourses. The objections of Morsi and his co-accused regarding the coup d’etat, the violence of the military, and the criminal origin of the regime are incompatible with “how the law thinks”. For the purpose of criminal law, these are “objection[s] that cannot be heard“: They do not signify within law’s logic, its rationality, and modes of thought.
Order legitimation and power rationalisation
The immediate purpose of the trial is two-fold. Firstly, the trial is the most effective silencing device: By delegating the matter to a sympathetic judiciary, the regime silences all forms of criticism while it neutralises the political field from its adversary. Secondly, and perhaps most importantly, the trial has the aim of rationalising and justifying the coup d’etat by retroactively situating Morsi’s defeat within a broader historical, political and moral narrative.
Using its truth-bearing discourses that allow it to create images that can neither be effaced nor rectified, the trial rationalises and justifies the power of the military regime. By presenting the adversary in the worst possible moral and political light, the trial both elaborates and consolidates a historico-political thesis in the image of the military and its civilian elites. What matters is not the validity or meaningfulness of the image so much as its effectiveness.
By accusing and judging the defendants for these crimes, the regime has a didactic goal that far exceeds the elimination of the Muslim Brotherhood: It aims to create a generative politico-historical thesis and an enduring image capable of instilling fear, prudence and obedience in potential foes. By projecting and amplifying a terrorist image of Morsi and his movement in the courtroom, a site of truth and justice supposedly elevated from the expediency of power and politics, the trial vindicates and authenticates a historico-political thesis in the image of the regime.
‘I am your president. You have no legitimacy’
However, trials are not chess games that go according to pre-arranged rules. They can denaturalise, as to expose its flimsy facade of legality. In exercising the authority to judge its enemies, it submits itself to the accusation of its adversaries and the judgment of history. Just as the state uses the devices of law as political weapons, Morsi too can turn to these weapons.
The device is not equally available to the state and Morsi, but the deliberative framework of the trial and the principle of calling to account means that the defendant has a speaking position from which he can give an account of himself and the charges. Indeed, if Morsi’s first day in court is any indication to go by, his trial could well be the trial of the military regime.
In his first court appearance, Morsi rejected the legitimacy and the authority of the court to try him. He argues that he is “the legitimate president” of the republic and accuses the military of a coup and treason. He challenges the court to justify how an illegal action – a coup d’etat – gives rise to a legal right that enables the criminals to judge an elected president: “This coup is a crime and treasonous, and the court is held responsible for it.”
Morsi’s defence will ask questions the prosecutor and the court cannot answer legally: According to what law, according to what rule of judgment and principle of justice do the courts and the social order they serve exercise the right to judge and punish an elected president? For Morsi and his supporters, “This is a military coup whose leaders must be put on trial in accordance with the constitution.”
If an elected president can be called to the court to account for these acts, what of the military leaders who committed a treasonous offense? In other words, can the military bring Morsi to the court without calling the Revolution to the court? It is this question that law is ultimately incapable of answering without sliding into the abyss, to its origin in self-help. It is also here that the disjuncture between law and revolutions becomes most manifest, exposing the government and its courts to the judgement of history.
Regardless of how the court frames and ultimately settles these destabilising questions, Morsi’s trial brings both the military and the revolution into the courtroom. The narratives and the verdict leave behind traces or remainders that cannot be integrated, or contained by the trial. It is this remainder, this excess, that exceeds the trial’s ability to conceal and suppress, that returns to haunt Egypt and unsettle it from within.