The realities of the Salem witch trials, in which 14 women and six men were killed, were brutal and unforgiving. But to hear President Trump’s personal attorney Rudolph W. Giuliani tell it, the witchcraft proceedings employed a higher standard of due process than the impeachment inquiry into Trump.
“Even Salem witch trials didn’t use anonymous testimony,” Giuliani wrote on Twitter on Tuesday, a day after news reports said the identity of the whistleblower whose complaint sparked the inquiry could be obscured during his congressional testimony. “The accused had to be confronted by a witness willing to put their name and reputation behind the charges and then had to be available for cross examination.”
Giuliani again compared the inquiry into Trump to the witch trials in a conversation with Fox News host Laura Ingraham on Tuesday: “They actually want to impeach him on the testimony of hidden witnesses who are behind a curtain; we don’t know who they are,” he said, adding that he recently had read two books about the Salem witch trials.
“The witches had it better, in other words,” Ingraham commented.
“They had more rights,” Giuliani said.
The impeachment inquiry, in which Congress gathers information about the president’s alleged impropriety, is not a trial. Giuliani’s comparison of the probe to the Salem witch trials was partly accurate, but he also got a lot wrong.
Although those suspected of practicing black magic have been persecuted at least since biblical times, hysteria around witchcraft in the United States peaked in the late 17th century. Young girls who started screaming and flying into “fits” would prompt local men to complain to a judge that someone was harming the girls through witchcraft. A dubious legal process would follow.
“Under the English tradition of justice, you are innocent until proven guilty,” said Emerson W. Baker, a history professor at Salem State University who has studied the witch trials. “However, in 1692, that clearly did not happen.”
Giuliani was correct that accusers at the Salem trials had to attach their names to their testimony. His claim that people accused of witchcraft were confronted by the witnesses in their cases, however, was largely false.
Many of the people who accused others of witchcraft never appeared at trial, Baker said. Instead, the supposedly afflicted girls would give depositions that were then presented in court. In these cases, there was no opportunity to cross-examine the accusers.
To start a witchcraft investigation, a person would complain about someone to a local judge. The judge would compel the sheriff’s office to arrest the accused so they could appear before a panel of judges, who would determine whether there was enough evidence to detain them before trial.
A grand jury then would decide whether to bring charges. Of the nearly 30 people in Salem who appeared before the grand juries in response to witchcraft allegations, Baker said only one was not charged.
In the Court of Oyer and Terminer (which means “to hear and to determine”), nine judges presided over trials. There were neither prosecutors nor defense attorneys, and the judges interrogated the accused as if they already had decided on their guilt. The questions, Baker said, were the 17th-century equivalent of “When did you stop beating your husband?”
“Why do you hurt these children?” Judge John Harthorn asked Sarah Good during her trial on witchcraft charges in February 1692.
After Good denied that she had hurt them or asked anyone else to hurt them, the judge asked Good “what creature” she employed to do it.
A key element of the witch trials was spectral evidence, which was witness testimony that the spirit or “specter” of someone who was not physically present had appeared to the witness. People sitting in the courtroom, for example, could cry out in pain and yell that someone’s spirit was afflicting them.
This type of evidence was considered questionable, Baker said. To convict someone of witchcraft, judges needed to have either a signed confession or two people who had seen the accused carry out an act of black magic. The evidence that opened a witchcraft case, however, was often spectral.
“Spectral evidence becomes absolutely critical,” Baker said. “Everyone who’s convicted in Salem faces spectral evidence.”
A 12-man jury decided the verdict in each case, Baker said, and in almost every instance found the accused guilty. When a jury found one woman — Rebecca Nurse — not guilty, the chief judge suggested to them that they had come to the wrong conclusion. The jury deliberated again and returned with a guilty verdict.
The sentence for a witchcraft conviction was execution by hanging. People who confessed to being witches, meanwhile, were kept alive in part so they could implicate their supposed accomplices, Baker said.
Some of the accused were subjected to torture to try to get them to confess. One form included tying a suspected witch’s neck to their heels and hanging them upside down by their belts until blood gushed out their noses. It was an early equivalent of waterboarding because it convinced the accused that they might die, Baker said.
Politicians and commentators of all ideologies have been known to refer to the Salem witch trials to argue that a member of their preferred party is getting a raw deal in an investigation. The probe into former secretary of state Hillary Clinton’s role in the 2012 Benghazi killings, for example, often was called a “witch hunt.”
“It’s always a way to sort of tar your opponents as extremists,” Baker said.