The Conspiracy of Trumpius

I seem to recall an interview with Steve Bannon in the early days of the Trump presidency—before the two had become enemies—in which he referred to the president as a modern-day version of the "Gracchi"—the plebeian-friendly land reformers of Roman times. It struck me at the time as a profound abuse of would-be Classical erudition—not least because Trump's plutocratic policy agenda in office has evinced not the slightest desire to redistribute anything, least of all land, which he has hoarded to himself throughout his career the better to waste as much money as he can on tax-deductible business expenses and accelerated depreciation ("depreciated acceleration" as William Gaddis' J R calls it). 

A vastly more fitting Classical reference for Trump fell into my lap the other day, in the course of my attempt to catch up on all the Roman history I missed in college by taking the non-traditional path through the "Civ" sequence. Here I was, looking at the works of Sallust online, and a vaguely-familiar title suddenly took on new significance to me. "The Conspiracy of Catiline." Conspiracy, you say? Who was this Catiline again, and what was he conspiring to do? I looked it up—an aristocrat who sought to subvert the Republic and carry off a coup, before he was halted mid-course by the opposition of then-consul Cicero. That Catiline. What could be more fitting to the moment? I decided I had to read Sallust. 

And so, tonight, in order to distract myself from the constant and futile refreshing of the Georgia senate election returns on the New York Times home page, I opened this short yet densely-packed work of history, in which Sallust recounts the ignominious career and richly-merited defeat of a would-be usurper. I discovered, as I had vaguely expected, that here in this lawless individual was a much more fitting historic analogue to our current seditious president than any Tiberius Gracchus. First of all, there is Catiline's tendency to surround himself with criminals, the better to bind each to the others through a conspiracy of mutual guilt and suspicion. Steve Bannon, of all people, should have known all about that! 

I was all pleased with myself and this find, only to discover, seconds before starting in on this post (because I was searching through google for that original Steve Bannon "Gracchi" story I remember seeing) that one Ross Douthat had already beaten me to the punch. And he did so as far back as 2017. Except that he explores the Catiline-Trump comparison only to mock it as exaggerated. "Does this sound a little silly?" he asks. This old column, you see, was part of Douthat's now years-long effort to make the continually-refuted-by-actual events claim that, in brief, "Trump is bad, but not as bad as liberals think, or not in the way that liberal think." Turns out, now as always, Trump is bad in these and every other way. 

And more to the point, Trump is bad in specifically Catilinian ways. That is, he is right now undertaking a seditious conspiracy to overturn our republic. Of course, he is going about it very poorly and ineptly. But then, it wasn't long before Catiline's plot was uncovered either—and in both cases through their own lapses of judgment. In the Roman's case, he trusted the wrong delegation of foreign ambassadors to be in on the plot (they eventually spilled the beans to Cicero and the Senate instead). In Trump's case, he tried to hector and bully the wrong public servant and legal counsel into throwing out the lawful votes of U.S. citizens, thereby falsely portraying Trump as the winner of the election (they spilled the beans to the Washington Post). 

So Trump proved in the end to be much more Catiline-like than Douthat or even I would have predicted back in 2017 (as we speak, he is summoning his bloodlust-fueled far-right followers to wreak mayhem in D.C. tomorrow, in yet another effort to overturn the result of a democratic election as the votes are being certified in Congress—much as Catiline reportedly planted agents in Rome to start fires and sow panic before he rode in to effectuate his coup). So, what do we learn from our foray into Roman history? That Trump is bad, of course; and not just a little bit bad, but world-historical levels of bad. But, interestingly, this is not all we take from Sallust. 

Sallust, after all, doesn't conclude his narrative at the moment the plot is effectively foiled—that is, once Cicero and Cato and the senators have captured a few of the chief conspirators (though not yet Catiline himself). The Roman historian also provides an account of the deliberations the leaders of the republic undertook in order to decide what should be done with the guilty parties. Cato, arguing for severity, points out that letting the conspirators go will only permit them another opportunity to come back and attempt the same crime again. "[I]f you do not act to prevent this crime," he warns, "when it does occur, justice will be something you plead for but don't get." (Batstone translation.)

Caesar, on the contrary, argues for the more merciful and open-handed course. While he does not dispute the gravity of the danger posed by these men, we warns that undue severity or injustice in dealing with them—particularly a severity that exceeds the bounds of established precedent—poses a greater danger still to the future of the republic. The senators are operating, after all, in the context of an emergency decree—passed in response to Catiline's sedition—that allows them to exercise virtually limitless powers in seeking to halt and extirpate the conspiracy. Caesar is warning the senators, in effect, not to abuse these powers. Not to use them to inflict harm and penalties on citizens that would not be permitted under normal circumstances.

This too reminded me of our present moment—but from the opposite direction. Assuming, after all, that Trump's bid to overturn democracy and the Constitution fails tomorrow—as nearly all legal experts agree it will... assuming that Biden takes office as expected on January 20... we will be faced with a question not wholly unlike the one faced by Cato and Caesar. We will have to figure out what is to be done with the men who conspired to overthrow our republic. Many have argued, with Cato, that prosecution is the only possible recourse we have, in the face of the danger they pose. We cannot have someone with this level of blatant contempt for democracy and his oath of office returned to power four years from now, if he runs for office again in 2024 - we just can't! 

On the other hand, the legal basis for that indictment and prosecution may not be as clear-cut as we would like, at least not with respect to his most recent acts of venality. Let us take for an instance the matter of sedition. 

Now, among Trump's many schemes for overturning the results of the election, he has apparently discussed with various associates—Flynn and Powell, e.g.—the possibility of using the "Insurrection Act" to impose a sort of martial law. This law is of course intended only for use in responding to an armed rebellion or seditious conspiracy. And the funny thing about Trump's cronies' conversations along these lines—if by "funny" we mean the blackest sort of irony—is that, by floating a plan to use this law to overthrow a Constitutional process and a democratic election, they are actually the ones who may be running afoul of the sedition statute. Trump's call to the Georgia Secretary of State, urging him to "find" enough votes to flip the election in Trump's favor, raises similar legal questions. 

So... were Trump, Flynn, Powell, Mark Meadows, and any of the other people who egged on the president in either conversation (the Georgia voter disenfranchisement one or the "martial law" one) guilty ipso facto of sedition? I mean, they were plotting and conspiring to overturn the election, right, and thereby the process mandated by the Constitution? Maybe.... On the other hand, they were engaging in speech. They were just using words. Therefore, there's a case to be made that they are protected under the First Amendment. 

Listening to the most recent episode of the National Security Law podcast, the co-hosts raised precisely this question—could all this be construed as protected speech?—with the two of them dividing along vaguely Cato-ish and Caesarian lines. 

Steve Vladeck, at last, injected the most Caesar-y point of all into the discussion. He noted that, abhorrent as Flynn et al.'s hypothetical conjecturing and far-off plotting might be, we should not be too hasty to prosecute them for it. He quoted the old maxim that hard cases make bad law, and noted that an expansive reading of what might constitute a criminal conspiracy or unlawful speech in one case of bad behavior could well be used to restrict First Amendment rights in others. 

This, I discovered, is almost word-for-word Caesar's case against the harsh punishment of the conspirators in the Catiline affair. "Every bad precedent arose from a good case," he argues (Batstone translation again). People may have granted themselves a new power because it seemed necessary and proper to the case at hand, Caesar says (to paraphrase); but, having set that dangerous precedent, they thereby left that power available for the abuse of those who come after. 

So it is with the potential prosecution of Trump. We may all agree his behavior on these occasions has been appalling and a menace to the country; but exactly how wide of a door do we want to leave open for the prosecution of other forms of political speech or speculative conversation that could be construed as a seditious plot? How leery should we be, under that circumstance, of seeing future prosecutions of left-wing and racial justice and anarchist groups, say, for having used the word "revolution" in some of their materials? Or of religious minorities for believing in laws that are distinct from U.S. secular law?

Vladeck concludes that, in either case, we should all get a lot more comfortable saying that something is abhorrent but that doesn't necessarily make it illegal. So too, the fact that something may not be vulnerable to prosecution does not make it remotely excusable or acceptable. Whether or not Flynn et al. are covered under the First Amendment, what they did is horrendous. Which is also more or less the place that one Constitutional law scholar ends up, in the Washington Post's initial write-up of the Trump/Raffensberger call. As the Post reports:  

Pildes said Trump’s clearer transgression is a moral one, and he emphasized that focusing on whether he committed a crime could deflect attention from the “simple, stark, horrific fact that we have a president trying to use the powers of his office to pressure state officials into committing election fraud to keep him in office.”

This, at last, is where we all—Catos and Caesars alike—ought to agree. Trump's behavior is abhorrent, dangerous, and a Catiline-level threat to our republic.