If there’s one thing in this divided America that we can all agree on, it’s that former president Donald J. Trump’s impeachment lawyer Bruce Castor was pretty crappy. The historic second impeachment trial of Trump began last Tuesday with a powerful argument made by the House Impeachment Manager, Jamie Raskin, and a somewhat different kind of argument made by defense attorney Bruce Castor.
In a rambling, largely incoherent speech that confused even Republicans, Bruce Castor, Jr. made a couple of remarks that perked up the Classicists in the audience:
At 02:08: The last time a body such as the United States Senate sat at the pinnacle of government with the responsibility that it has today, it was happening in Athens and it was happening in Rome. Republicanism, the form of government, republicanism, throughout history, has always and without exception, fallen because of fights from within. Because of partisanship from within…once there was the vacuum created that the greatest deliberative bodies, the Senate of Greece sitting in Athens, the Senate of Rome, the moment that they devolved into such partisanship, it’s not as though they ceased to exist. They ceased to exist as representative democracy. Both replaced by totalitarianism.
At 16:28: The only entity that stands between the bitter infighting that led to the downfall of the Greek Republic and the Roman Republic and the American Republic is the Senate of the United States.
Castor’s shout-outs to the Roman Republic are unsurprising, given the GOP’s love of likening themselves to the illustrious figures defending the Roman Republic of yore, despite being less the party of Cicero and more that of Nero. Putting aside the fact that we really need to stop making superficial comparisons of modern political phenomena to events in ancient Rome, it should be noted that Cicero famously prosecuted corrupt politicians rather than defended them (the Verrine Orations are greatest hits, not deep cuts — they are readily available for skimming online while deliberately averting your eyes from insurrection videos). It may be an exercise in futility to try to derive meaning from historical set dressing in an argument that is, at best, obfuscating and, at worst, merely wasting time, but here is an attempt to parse Castor’s meaning: The republicanism of “representative democracy” in Greco-Roman antiquity dissolved into totalitarianism because of political partisanship. A partisan attempt at holding Trump accountable for alleged misdeeds will destroy our Senate and democracy, too (and if that reads like a bad essay written the night before it was due, that’s because it was.)
Image: Impeachment rally. Photo courtesy of Creative Commons.
In their opening arguments, the Trump legal team made their case exclusively on denouncing the constitutionality of impeaching a politician who has left office. Numerous constitutional scholars have dismissed this argument against impeachment. And despite the fact that immediately after the defense team finished their opening arguments, the Senate (which can make its own rules) voted that it is constitutional to try a former president, the defense team and their Republican supporters never abandoned the argument.
Since Castor drew a connection to the fall of the Roman Republic and partisanship twice (I refrain from comment on his “Senate of the Greek Republic”) and most of the defense rests on the impossibility of trying former officials after their terms end, it’s worth pointing out that the Roman Senate governed the Republic for hundreds of years with  extreme partisanship and  legislation that attempted to curtail the abuse of power while in office with the threat of prosecution out of it.
This legislation is, in fact, the reason why Caesar famously cast the die and waded across the Rubicon after serving an extended stint as proconsul of Gaul (where he committed genocide and confiscated immense wealth). He certainly would have agreed with Trump’s defense team: why should he held accountable for the last 14 days, or even 8 years? He won his consulship by a landslide, he had a million more Gauls’ heads than his opponents to show for it, and he also had the backing of the people against those Forum elites! Facing prosecution if he ceded back his imperium, Caesar instead launched a coup d’état that started with a Roman civil war and ended with his declaring himself dictator for life. His term was abruptly cut short when at least 60 senators — even Brutus and Cassius couldn’t round up 67 senators in a bipartisan stand against authoritarianism — voted to impeach his body with their daggers (et tu, Romney?).
I suppose you could make the argument that if the Roman government did not have this legislation, Caesar wouldn’t have felt the need to take his army and march on Rome—but, had he been allowed to retain vast wealth and influence without check, Caesar would have likely been empowered to threaten the Republic anyway. All roads lead to…tyranny. But before Caesar cancelled the Republic, two sets of legislation attempted the check the abuses of politicians: repetundae and maiestas.
Let’s first note that Rome was a Res Publica with representative democracy, unlike the direct democracy of ancient Athens, and as any student of Latin will tell you, the word res may contain multitudes, but “equity” is not among them (ctrl+F if you want to check my math). This is the argument you will most often hear Barb from Florida espouse on Facebook to “own the libs” who are advocating for American voting rights. The Roman Republic stood for hundreds of years before the orders struggled and non-patricians gained some rights (not women though, a circumstance some on the political right think sounds just fine). But, as Rome became an imperial power, it recognized that some attempt at accountability, at least in the outward-facing aspects of governance, was necessary to keep the peace, especially given the ever-increasing number of officials needed to manage Rome’s territories. Roman governors had near-absolute authority in their provinces, and a check on their military and monetary power in the provinces would check their influence at home. Enter the leges de repetundis and de maiestate.
It was generally assumed that a governor (generally a proconsul or propraetor), his staff, and his cohors (friends and family in attendance — nepotism was not considered an ethical issue) would exploit the province at least a little. Governors had armies to keep the peace, but a large part of their job was to hear local cases and keep an eye on taxation. Bribery and corruption were rife. The most performatively ethical politicians, like G. Gracchus (ap. Gellius NA 15.12), Cato the Elder (Plut. Cat. Maior 10.4), and Quintus Cicero (Cic. ad Att. Quint. 1.1.12–13), boasted that they did not hang out in wine shops, keep pretty boys around, take bribes, buy enslaved people or sex laborers, corrupt the Roman youth accompanying them, take booty, etc. One of the fastest ways to alienate your friends was to refuse to enrich them in your province…or bring home panthers for them (Cic. ad Fam. 2.2, 8.9). That they needed to brag about not doing these things suggests these things were the norm.
In 149 BCE, a court was established to hear complaints about a governor after his term. The literal meaning of lex de repetundis is “law about monies/property to be recovered” because provincials had so many complaints about extortion and theft by governors. The law was limited, as one had to wait until a governor went home to complain, foreigners had to be represented by a Roman citizen, and the jury was made up of senators judging other senators. Through the reforms of G. Gracchus some 30 years later, the court doubled monetary penalties, switched to an equestrian jury, and allowed non-citizens to bring cases. Control of the courts bounced back and forth between senators and equestrians over time through various amendments. What’s funny is that Caesar himself in 59 BCE was responsible for significantly increasing the penalties for abuse of office (not “haha” funny so much as “wow, in hindsight that’s really hypocritical” funny, a reaction anyone following American politics for the last four years is certainly familiar with).
The most famous example of post-province prosecution was that of Verres, governor of Sicily (74–70 BCE). Cicero asserted that, unlike most bad governors, Verres was corrupt before he got to his province (Verr. 2.2.39). He was corrupt after too, as he tried to postpone the trial until his buddy ascended to the praetorship (and thus became judge in his trial), kind of like Mitch McConnell refusing to call the Senate back from break while Trump was still in office to make the argument that the trial was unconstitutional once he was out of office. You know, that kind of corruption. Cicero alleged that Verres committed a number of crimes, like ruining farmers by canceling contracts, assaulting local virgins (Verr. 2.1.64–75), selling his court judgments (Verr. 2.2), and stealing the art from public temples and private residences alike (Verr. 2.4). Cicero joked during his prosecution (Verr. 1.40) that out of three years of stealing, one year’s profit was for Verres, one for his lawyer, and one for the bribes he would need to avoid conviction after his governorship — sort of like Trump’s Save America PAC, except Trump didn’t actually save much money for his lawyers, which is why Verres had Quintus Hortensius, one of the best lawyers of his day, and Trump has…not that. Verres didn’t wait for the outcome of the trial, instead taking off to his private beachside resort, Mar-a-Verr-o in modern day Marseilles, presumably where he had already installed all the stolen art.
Image: The Roman Senate, the Curia. Photo courtesy of Creative Commons.
The other law to check an official’s power was maiestas. Maiestas was a kind of catch-all on treason to prevent an official’s demeaning the majesty of Rome by abusing imperium given in Rome’s name. Basically, you represent Rome, don’t embarrass us. Sulla’s lex Cornelia de maiestate specifically prohibited a commander from leaving his province with or without the army, or waging war on a foreign power without expressed permission of the Senate. After Sulla, the law was kept deliberately vague, but it certainly would have covered inciting an insurrection against the state, to pick a totally random example. Maiestas devolved into absurdity in Imperial Rome, becoming an excuse to inform on one’s enemies and steal their property. Dio (58 frag. 2) mentions a former consul convicted of maiestas and stripped of his property for the offense of carrying a coin bearing the image of the emperor to the latrine (it’s impossible to know if the material of the toilet would have made a difference).
Why should we care what Rome did to curb the abuse of power by officials of the government? As I said above, as a practical matter, we shouldn’t. But since so much language around the constitutionality of impeachment involves the Founders and their motivations, talk inevitably turns to the political systems on which the Founders based early American government and legislation. And if we are going to make historical references in a legal argument, we might want to make good, or at least accurate, historical references. Rome had legislation in place to prevent abuse of power, and it existed to hold officials accountable after their terms ended.
Were these laws applied fairly? No. Were partisan lines drawn across accusations of corruption? Of course. Did exploited peoples receive justice or compensation? Rarely.
But the deeply flawed Senate of the Roman Republic recognized that without some veneer of accountability, there could be no legitimate governance in the eyes of the peoples they ruled. It was the rise of authoritarianism, the belief of certain elite wealthy men that they were above the law and could act with impunity that ended the Roman Republic, not a clash of political parties.
As I write this, the Senate voted to acquit former president Donald J. Trump of inciting a riot and insurrection against the federal government, 57–43, falling short of the 67 votes required to convict and bar Trump from further office. See you back here in four years. Verres 2024!
Header image: Gaius Gracchus addressing the plebeians. Image courtesy of Wikimedia Commons.