Supreme Court immunity ruling raises questions about military orders
The Supreme Court’s stunning ruling
giving presidents immunity from prosecution for official acts raises serious questions about orders issued by the commander in chief to the military, especially if those commands clearly violate U.S. or international law.
A commander in chief with broad immunity from criminal prosecution would have more power and leeway in issuing controversial orders that the military is in most cases obligated to carry out, according to the chain of command.
The Supreme Court ruling, which came in a case related to former President Trump’s efforts to overturn the 2020 election, has sparked general fears about an abuse of power using the military, but also particular concerns about Trump, who has promised to exact revenge if he retakes the White House.
While there may be legal challenges down the line, experts say the ruling does not extend immunity protections for commanders and enlisted service members who carry out the president’s orders.
Victor Hansen, professor of law at the New England School of Law in Boston, explained that service members still have to adhere to legal standards even if the president does not, and said the Supreme Court ruling “flips the dynamic on its head.”
“Now you have the subordinates who have not all of the authority but all of the responsibility,” said Hansen, who served a 20-year career as a military lawyer in the U.S. Army. “And you have a guy at the top who has all the authority and none of the responsibility.”
“It is, in my humble opinion, an absurd and damaging ruling,” he added.
The ruling decided a challenge from Trump’s legal team to a case in Washington, D.C., courts related to the Jan. 6, 2021, riot and other efforts by Trump and his allies to keep power after the 2020 election. His lawyers are now arguing the ruling should apply to a separate case in Florida, where he is charged with illegally keeping classified records, including national security documents.
During legal arguments in January, Trump’s lawyers made the case that a president should enjoy broad immunity from criminal prosecution as a former executive, even if he
were to order the assassination of a political rival using the elite SEAL Team 6.
Trump attorney John Sauer told a three-judge panel at the D.C. Circuit Court of Appeals that a former president can only be criminally prosecuted if he has been tried and convicted by the Senate.
The argument at the time was widely panned as ridiculous; James Pearce, an attorney with special counsel Jack Smith, who is overseeing the Trump federal convictions, told the judges that Sauer had outlined a “frightening future.”
“What kind of world are we living in … if a president orders his SEAL team to murder a political rival and then resigns or is not impeached — that is not a crime?“ Pearce said at the time.
Trump’s arguments failed in the D.C. appellate court, leading to an appeal to the Supreme Court, which has a conservative majority after Trump appointed three lifetime-serving judges to the high bench.
The high court ruled 6-3 along ideological lines July 1 to give the president absolute immunity for actions taken from “core constitutional powers” that are bestowed upon taking the Oval Office.
U.S. Chief Justice John Roberts argued that a president is already immune from civil liabilities for actions taken while in office, and that shield should be extended to criminal prosecution to ensure the executive branch can effectively carry out its functions without fear of prosecution.
But liberal judges harshly dissented. Justice Sonia Sotomayor in a scathing dissent referred to the SEAL Team 6 scenario or a commander in chief organizing a military coup, saying the Supreme Court has given the president a “loaded weapon” in awarding such broad immunity.
“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done,” she wrote. “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
Congressional Democrats also reacted with alarm after the ruling.
“Under this ruling, if a President, in their official capacity,
orders the military to kill other Americans — judges, elected officials, reporters, your neighbor – they can do so,” Rep. Zoe Lofgren (D-Calif.) said. “I think most Americans, and I include myself, think that should be a crime.”
While a president can still be criminally prosecuted for unofficial acts, any order issued to the military is a clear official act. A U.S. service member would not enjoy the president’s same immunity, but the White House could also offer pardons for being loyal. However, a federal pardon would not apply to violations of state law.
Geoffrey Corn, director of the Center for Military Law and Policy at Texas Tech University School of Law, said the most extreme scenarios, like using a Navy SEAL team to assassinate a political rival, is unlikely because a president would want to avoid obviously breaking the law, even if he faces no legal consequences.
Instead, he pointed to more “subtle” scenarios, like when Trump tried to invoke the Insurrection Act in 2020 to quell Black Lives Matter protests with the military and National Guard.
“This incentivizes abuse of power. If you are the president, and you perceive no adverse criminal consequence from ordering what all of the lawyers around are saying is illegal,” Corn said, “and you don’t really worry about political consequence because you have no fear that you’re going to be removed by impeachment, what’s holding you back?”
“By turning the military into a tool to advance your political agenda, that has risk,” he added.
U.S. service members are obligated to carry out legal orders unless it is clearly illegal, though making that distinction has always been murky.
The Pentagon and each of the military branches have attorneys with the Judge Advocate General’s Corps (JAG) for service members to consult in such cases.
Pentagon press secretary Maj. Gen. Pat Ryder noted after the ruling that service members follow the Uniform Code of Military Justice, which lays out criminal law and military-specific codes, such as desertion or disobeying a superior commander.
Ryder said lawyers are always available, and that does not change after the Supreme Court ruling.
“That’s going to enable any leader, regardless of the decision or the order that they’re contemplating, to make informed legal and ethical decisions,” Ryder said at a Tuesday briefing.
Aside from White House lawyers who are likely to justify a president’s decision, a higher-ranking set of lawyers, such as the Army’s general counsel, may also advance controversial or illegal orders.
That could conflict with JAG lawyers on the lower end of the chain of command who may see a clear illegal order, thus creating “chaos” across the ranks, Corn said.
“Ultimately, the person with the greatest risk is the commander who … has to decide, ‘Am I going to obey this order and risk my own [life] and take the risk that in the future, a new administration is going to come in and say everybody who was involved in implementing this order committed a crime?’” he said.
“Or am I going to disobey the order and take the risk that the current president is going to prosecute me for willful disobedience of an order?” he added.
Eugene Fidell, visiting lecturer and senior research scholar at Yale Law School, said the Supreme Court “rolled the dice for future presidents” and will force service members to also roll the dice.
“People are trained to follow orders,” he said, “not to resist them.”
Trump’s former Sec. Def. Mark Esper: “[Trump] was suggesting that...we should bring in the troops and shoot the protesters.” Q: “The commander-in-chief was suggesting that the U.S. military shoot protesters?” Esper: “Yes, in the streets of our nation’s capital.” (May 2022)
Trump is almost certainly going to be the president of the United States. So fill in the remaining blanks.
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