Does Rome’s most notorious dictator offer a precedent for Donald Trump?
A recent CNN article (Oct. 17, 2020) tallied the potential legal consequences Donald Trump might face should he lose the 2020 presidential election. The president’s actions — before and while in office — have prompted numerous criminal investigations and civil suits.
These include defamation lawsuits from women who claim he assaulted them, investigations of the Trump Organization, violations of election laws, and questions about potential violations of the Constitution’s Foreign Emoluments Clause.
Trump’s attorneys have managed to block most of these legal attacks by taking refuge behind the shield of his office. In 1973, the U. S. Justice Department’s Office of Legal Counsel offered an opinion that a sitting president may not face prosecution while he holds office.
Prosecution of a sitting president, claimed the opinion, violated the separation of powers between the judicial and executive branches of the state. A president would be hindered in the performance of his duties; a trial could create a conflict of interest since he appoints the Attorney General who oversees the justice system.
Although the OLC opinion does not cite ancient precedents for its judgment, the leaders of Rome’s republic also enjoyed protection from prosecution while office-holders. A magistrate with imperium — authority over a province or military unit — could not be prosecuted for any crime while he held his office.
A man could cheat, steal, bribe, and extort money from his subjects with impunity. But when his term lapsed and he lost imperium, the ex-magistrate became vulnerable. Prosecution after the fact was not uncommon: a young Cicero cemented his legal reputation by prosecuting Gaius Verres, former governor of Sicily, for crimes against the island’s residents in 75 BC.
Like Rome, the United States extends unusual protections to the man who holds the country’s highest office. As the country moves toward the 2020 election, one might ask if Rome offers other parallels that might illustrate the old saw of history repeating itself.
The Dictator Julius Caesar
After a controversial political career, Julius Caesar was threatened with prosecution at the end of his consulship in 59 BC.
According to the Roman historian Suetonius, Gaius Memmius and Lucius Domitius launched an inquiry into his activities, and Caesar only avoided charges by securing a proconsulship in Gaul, which extended his legal immunity (Suet. Jul. 23.1).
Caesar postponed prosecution for ten years, but when his second term as proconsul approached its end, his enemies again began to gather. Caesar hoped that he could stand for another consulship — and thus extend the protection of his imperium — but the Senate required him to relinquish his military command and return to Rome if he wanted to run for the office.
Stripped of power and legal protection, Caesar knew that he would be pulled down by his enemies. His only alternative was to make a desperate bid for the dictatorship that would give him complete control over the state and allow him to crush his enemies. Suetonius, evaluating his motivations, believed the threat of prosecution best explained subsequent events:
But when the senate declined to interfere, and his opponents declared that they would accept no compromise in a matter affecting the public welfare, he crossed to Hither Gaul, and after holding all the assizes, halted at Ravenna, intending to resort to war if the senate took any drastic action against the tribunes of the commons who interposed vetoes in his behalf.
Now this was his excuse for the civil war, but it is believed that he had other motives. Gnaeus Pompeius (Pompey the Great) used to declare that since Caesar’s own means were not sufficient to complete the works which he had planned, nor to do all that he had led the people to expect on his return, he desired a state of general unrest and turmoil.
Others say that he dreaded the necessity of rendering an account for what he had done in his first consulship contrary to the auspices and the laws, and regardless of vetoes; for Marcus Cato often declared, and took oath too, that he would impeach Caesar the moment he had disbanded his army.
It was openly said too that if he was out of office on his return, he would be obliged, like Milo, to make his defense in a court hedged about by armed men. The latter opinion is the more credible one in view of the assertion of Asinius Pollio, that when Caesar at the battle of Pharsalus saw his enemies slain or in flight, he said, word for word: “They would have it so. Even I, Gaius Caesar, after so many great deeds, should have been found guilty, if I had not turned to my army for help.”
Some think that habit had given him a love of power, and that weighing the strength of his adversaries against his own, he grasped the opportunity of usurping the despotism which had been his heart’s desire from early youth. –Suetonius, Jul. 30
The Senate refused to compromise and Caesar rolled his fatal dice. Following the example of Cornelius Sulla, he marched on Rome at the head of his army, and, after defeating his adversary Pompey, forced the Senate to elect him dictator.
With this power, Caesar had no need to fear the legal consequences of his actions. The imperium of the dictatorship conferred complete legal immunity. Neither the state nor his enemies could not touch him.
Trump and the Future of American Democracy
Would Donald Trump, should he fail to be re-elected, attempt to subvert the normal transfer of power in order and remain in office?
Surveying the deepening legal quagmire on the road that leads away from the White House, a journey that will have to be made without the powerful protection of the federal justice system and the shield of his office, the president might entertain thoughts of disrupting the government in order to retain power. In a divided, polarized country, a land in which a vocal minority supports the president, one could imagine a situation in which a coup could succeed.
On the other hand, continuing to press the parallels, Julius Caesar would not have been able to overthrow the Roman state without the support of the military. His soldiers were intensely loyal and did not hesitate to enforce their general’s will.
Although he presents himself as a great military president, Donald Trump is unlikely to engender the fanatical allegiance of a Julius Caesar; the most recent Military Times poll suggests that a majority of active duty personnel intend to vote for Joe Biden. The president enjoys support from less than thirty-eight percent of the respondents. Moreover, an educated officer corps — the president has not done well with voters who hold college degrees — would be unlikely to support an illegal extension of his power.
So, if the president loses this election, he will face his accusers, shorn of imperium, like Gaius Verres. He will no longer enjoy the immunity his office has conferred and may spend his remaining years haunting the courts as he wards off the innumerable legal challenges that his presidency has engendered.
Sources: Department of Justice Memorandum, “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.” September 24, 1973; Leo Shane III. “Trump’s popularity slips in latest Military Times Poll.” Military Times, August 31, 2020; Suetonius, The Life of Julius Caesar.