How Republics End

“Welcome as the death of Nero had been in the first burst of joy, yet it had not only roused various emotions in Rome, among the Senators, the people, or the soldiery of the capital, it had also excited all the legions and their generals; for now had been divulged that secret of the empire, that emperors could be made elsewhere than at Rome.”

Thus the Roman historian Tacitus reflected on the events of 69 AD, the Year of Four Emperors, where first the Praetorian Guard, then the armies on the Rhine, and finally the armies in Judea foisted emperors on the Roman Senate and people. It was a year when the unthinkable became thinkable.

As Tacitus notes, there had been no physical force that could have stopped a Roman army from marching on Rome and installing its own emperor other than the actions of a different Roman army. But prior to 69 AD, it never occurred to the soldiers that they could dictate orders to Rome rather than the other way around, and generals sent to the frontiers saw it as exile from the center of political power rather than an opportunity.

From 69 AD onwards, however, every Roman general would view marching on Rome as a possible contingency, and every emperor would have to consider that possibility whenever appointing, removing, or managing military appointments. Once the “secret of empire,” as Tacitus termed it, was out, there was no going back. A psychological Rubicon — not a legal or geographical one — had been crossed, and the  actual balance of power within the Roman state had shifted forever.

On February 16, Donald Trump was found guilty of fraudulently inflating earnings by Judge Arthur Engoron, barred from doing business in the state of New York for three years, and ordered to pay $354 million. Because of a quirk of New York state law, which allows for the penalty to begin accruing interest from the time charges are brought rather than from conviction, the actual sum may be closer to $450 million.

Notably, Donald Trump was not found guilty by a jury of his peers. There was no jury, and the judge sat on his own. The charges themselves were not brought by wronged parties as is typical in a civil suit, but by the Attorney General of New York State, Letitia James, who had campaigned on a platform of explicitly targeting Donald Trump.

For many Americans, the politicalized nature of the proceedings is self-evident. For others, the trial represented a long-overdue act of justice and a recognition that ‘no one is above the law’. Whether that justice relates to the technical charges behind the case or a more cosmic desire to punish Donald Trump for winning in 2016, and everything they blame him for that followed, varies from person to person. The irony is that if there is one point almost everyone agrees upon, it is that the entire process of prosecuting Donald Trump is an inherently political act.

In a certain sense, the American judicial system has always had a political element. Prosecutors have always been elected, and the concept of prosecutorial discretion about what crimes to prosecute and which to let slide is not only a long-accepted part of the American justice system, but a requirement given the often incoherent web of rules and laws which have never been repealed.

This has been almost universally understood when it comes to offenses such as traffic violations, noise complaints, or misdemeanors in small towns, and much more controversial when it has been applied ideologically, such as refusals to prosecute entire categories of crimes or offenses.

The latter scenario, perhaps best encapsulated by the rise of “sanctuary” cities pledging to refuse cooperation with U.S. immigration laws, set the stage for the election of “progressive prosecutors” who would refuse to prosecute misdemeanors and drug offenses. This escalated into effectively refusing to punish shoplifting, open-air drug markets, and a host of other “minor” offenses.

The rise of a prosecutorial class which views itself as agents of a certain political party rather than neutral enforcers of the law shows the dangers of normalizing this behavior. When selective enforcement is driven by electoral incentives, the electoral bidding process will create pressure to escalate in order to outbid rival candidates.

Hence, defenders of not enforcing federal immigration laws found themselves challenged on the left by those advocating “rehabilitation” instead of prison for non-violent crime and drug offenses, who in turn were charged with racism for prosecuting shoplifting.

This thereby proves Tacitus’ point. While extreme prosecutorial discretion in order to advance a partisan agenda has always existed in theory, the justice system relied on the integrity of prosecutors and that this power would remain “secret” from political activists. Once it became public knowledge that what laws are enforced and how depends on the whims of an elected prosecutor, prosecutors became elected on the basis of what laws they would not enforce.

It was only a short step from electing prosecutors on the basis of what laws they would not enforce to electing them based on what laws they would. When it came to this secret, the Founding Fathers were well aware of what horrors the legal concept of proscription had produced in Rome, and they explicitly prohibited bills of attainder in the Constitution.

Bills of attainder are a type of bill in which a legislature, bypassing the courts, merely declares an individual guilty of a crime, usually treason, and prescribes the punishment. A means of regular judicial murder for the Tudor monarchs, the British Parliament had turned them against Charles I in the lead-up to the English Civil War, passing bills of attainder to execute his ministers and advisers for treason.

It has taken two centuries, but the successors of these Parliamentary schemers have figured away around the U.S. Constitutional prohibition, by embracing selective prosecution. Having been at the forefront of winning office by promising not to enforce laws because they supposedly targeted favored groups, New York prosecutors and their urban Democratic counterparts were well equipped to grasp the “secret” that they could also win office by promising to enforce laws against disfavored persons.

What followed illustrates another secret as old as Rome: While criminal convictions require extensive evidence and a crime, the dispute-based nature of civil law is a different matter. Almost everyone has done something that may have harmed another person, and with a lower burden of proof, sufficient resources can generate a case on-demand.

This is precisely why many states, including New York, enacted anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes, banning a practice in which wealthy individuals or corporations would file lawsuits not with the intent of winning, but of overwhelming the defendants with legal bills sufficient to force them into bankruptcy.

In short, if Donald Trump was the victim of a series of well-funded private lawsuits aimed at bankrupting him in order to prevent him from public participation, it would be illegal, and he could counter-sue for damages.

However, thanks to Letitia James, the “secret of the republic” is now out that anti-SLAPP statutes do not apply to SLAPPs launched with taxpayer money by public officials.

The case against Donald Trump is almost a textbook definition of a SLAPP, with the motive being Donald Trump’s public participation rather than any offenses he may have committed. Donald Trump was a well-known figure in New York’s business and real estate worlds, and something of a mascot, as evidenced by his appearance in Home Alone 2. It would not be far afield to suggest that ostentatious shows of business success were part of his brand, and precisely what endeared him to New Yorkers and then Americans thanks to his show The Apprentice.

Democratic district attorneys and attorneys general had no issue with this as long as their voters did not, and it is almost impossible to credibly claim they ever would have taken action if Donald Trump had never been elected president.

As such, these lawsuits are not an effort to uphold any standards of business conduct. If they were, they would have been launched decades ago. In fact the perception of a political motive in the Trump case would undermine any legitimate objective to uphold business standards by sending the implicit message to other “offenders” that they are safe if they stay away from politics. Instead, the lawsuits have a clear motive: to destroy Donald Trump, and if that’s not in the cards, hurt him as much as possible.

The precedent set here is not just about Donald Trump. As with the left’s efforts to disqualify him from running in 2024 using Section III of the 14th Amendment, a coalition of partisan Democrats, MSNBC liberals, and Never-Trump ex-conservatives seem to have created an alternate universe where everyone else is willing to agree with them that Donald Trump represents a phenomenon unique in history, and that any precedents set in the left’s treatment of him will not be applicable to anyone else.

That is how they can argue that Donald Trump can be disqualified from the ballot for insurrection under Section III of the 14th Amendment without a conviction or even a trial for insurrection based solely on their claims that he engaged in it, yet dismiss the possibility of Biden being disqualified for failing to control the border because they say that doesn’t constitute an insurrection. It is akin to arguments 2,000 years ago that legal precedents only applied to Julius Caesar, and that Rome’s leadership could act with no consideration for the future. As Tacitus would note, “Caesar” soon became a family and then a title.

The “secret” that is now out is that anyone running for DA or AG anywhere in the country can win by promising to use taxpayer resources to target a politician or public figure unpopular in the locality. Provided that figure is unpopular enough in the state, they can be ruined through the state court system with few opportunities to appeal in the federal court system.

At a time when Democrats and Republicans are so polarized that merely being a member of the other party who believes differently gets someone charged with being a “traitor” or “genocide,” the idea that this won’t be used to target Democratic politicians is delusionally optimistic.

Worst of all, the left doesn’t even need to win in court. There is a good chance Donald Trump will end up paying nothing to New York in the end, but in the meantime, he has been forced to spend enormous amounts of time, and tens of millions of dollars in legal fees, all of which, as Democrats gleefully brag, undermines his campaign. If Democrats and Republicans realize they can deplete their opponent’s campaign resources with taxpayer-funded SLAPP lawsuits, then we will see large numbers of such suits filed merely to cripple the resources of the minority parties in states.

Trump critics will say this is an alarmist, slippery slope argument, but as Tacitus observed, if ever there was an emperor who deserved to be deposed by a military rebellion it was Nero. The problem was that the “secret of empire” was not that emperors could be made elsewhere than Rome when the government in Rome was bad. It was that emperors could be made elsewhere than Rome, whenever anyone with an army felt the emperor was bad, or that they could do a better job.

Voters in New York wanted the legal system used to ruin Donald Trump, and they wanted him ruined because of his political activity. The “secret” that is now out is that voters who want to see someone whose politics they don’t like, but cannot defeat in an election nationally, ruined in local courts can get what they want.

We should expect them to demand their due, with the American Republic set to reap the whirlwind. In the end, it may not be Trump that is ruined.

Walter Samuel is the pseudonym of a prolific international affairs writer and academic. He has worked in Washington as well as in London and Asia, and holds a Doctorate in International History.