On May 29th, Robert Mueller presented himself at a press conference for the first time since the release of his momentous report of Russian interference in the 2016 American election. At this press conference, Robert Mueller clarified the findings of his team’s investigation into Russian interference; one particular piece of emphasis was that his team was unable to levy charges against the President of the United States due to a Department of Justice policy based on a memo put out during the Nixon Administration. This policy makes the President immune from criminal charges from the Department of Justice while the President is in office and essentially served as an insurance policy if Nixon’s claim that he was not a crook did not convince enough people.

It is this inability to levy charges against the President that Trump waves around as proof of his exoneration, despite Mueller explicitly stating that failure to prove conspiracy is not exoneration from conspiracy. As such, Mueller has publicly put the ball in Congress’ court by referencing the process of impeachment as one of the mechanisms in the Constitution that can be used to indict a President.

At the core of this is the issue of immunity of office; that is, someone serving in a public capacity is immune to prosecution. It is a concept that dates back to the Roman Republic; citizens voted into office were immune from all prosecution for as long as they were in office. However, most if not all electoral offices were up for re-election every year. In addition, some offices prevented the same person from holding that position for sequential years. As such, if someone in office made political enemies they effectively had a countdown to when they would be charged with a crime that could see them fined, banished or executed.

As Roman politics became more charged after the Second Punic War, immunity of office became a coveted commodity. This came to a head when Tiberius Gracchus was elected Tribune of the People in 133 BC; seeing it necessary to redistribute wealth in Roman society that had overwhelmingly gone to the patricians, Gracchus put forth an agrarian reform bill that would break up large landowner estates to redistribute to veterans and the destitute living in Rome.

However, another Tribune named Octavius continually vetoed Gracchus’ bill in order to protect Octavius’ wealthy benefactors. Incensed, Tiberius had Octavius physically removed from the building to allow the legal proceedings to continue, which was considered a violation of the political office. Seeing that this violation of decorum backfired politically, and knowing that the wealthy landowners would be seeking legal revenge, Gracchus did something that had not been done for 300 years. He ran for reelection to the office of Tribune in order to avoid prosecution. With Gracchus almost ensured of a victory, his political enemies had Gracchus and many of his supporters beaten to death.

Though Gracchus died, the concept of immunity of office did not. Immunity of office was a large part of Julius Caesar’s trajectory toward killing the Republic, as it was his position of Governor of Cisalpine Gaul (modern-day Northern Italy) that he used as a shield from political prosecution and a sword to gather the veterans and the wealth that would propel him across the Rubicon to victory against Magnus Pompey.

The problem with the concept of immunity of office is apparent; if a politician does something illegal enough that the consequences of the illegal act will dismantle their livelihood but the office the politician holds prevents them from facing those consequences, that politician may be inclined to do whatever it takes to retain office.

And if that politician happens to be the commander-in-chief of the most overwhelmingly powerful military in history and the figurehead of a cult, perhaps there is a cause for concern. Perhaps the concept of immunity of office needs to be revisited.