Two reasons for cautious optimism—or at least cautious suspension of outright horror
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On July 1, the U.S. Supreme Court issued its long-awaited presidential immunity decision in the sure-to-be-landmark Trump v. United States case. Though the majority opinion raised significant and troubling implications, the question of just how far this new explicit immunity can go was first raised in oral argument: Can a president order SEAL Team 6 to assassinate a domestic political rival?
Unsurprisingly, the hypothetical is being raised again with increased vigor in the public and among retired general officers. In her dissent, Justice Sonia Sotomayor added another hypothetical: ordering the military to seize the government via coup on the president’s behalf. Those executing these unlawful acts would be subject to criminal prosecution, but—under the majority’s reasoning—the individual orchestrating and demanding the same acts would be insulated from any criminal consequences. Sotomayor’s reading of the majority’s new rule, a rule that broadly interprets “official act” (and thus the basis for triggering absolute or presumptive immunity), is that the Court has made the president into “a king above the law.”
The answer to the SEAL Team 6 hypothetical is actually not that difficult. Under the Uniform Code of Military Justice and the Manual for Courts-Martial, there is no legal consequence or impact on an individual service member’s duty to obey lawful orders and disobey unlawful orders. Presidential immunity does not transfigure an unlawful act into one that must be obeyed upon penalty of court-martial. Immunity might, however, erase any deterrent effect that domestic criminal law may have on a president acting on an impulse that would be—for the agents executing that order anyway—otherwise illegal. If a president is otherwise unconcerned with political ramifications (that is, impeachment or an election) or his historical legacy, the military agents beneath him in the chain-of-command are the sole obstacle of any significance. This presents a risk that the military serves as guardian and enforcer of the rule of law in ways that courts, Congress, and the president’s personal integrity and political exigency cannot. Because service members and presidents swear a similar oath of office, the decision also risks compromising the norm of the military’s reliance on the good faith, moral compass, and constitutional fidelity of their commander in chief.
Assuming the Court is correct in its vague demarcation between official and unofficial acts, and even if such orders were probable, there are two reasons for cautious optimism—or at least cautious suspension of outright horror.
First, the Court drew a distinction between two types of official acts: those within the core of a president’s Article II “conclusive and preclusive” powers and those within the “outer perimeter” of that authority. In the first category, there is no way for Courts or Congress to intervene due to complete and absolute criminal immunity. The president is free to be the commander in chief of the armed forces, appoint ambassadors, pardon for any reason even if corrupt, and discuss candidly matters within the regular scope of duties of an executive agency with the leaders of those agencies (like the Department of Justice) even if those discussions become inducements to commit fraud or other crimes on his behalf (the Court explicitly rules out considerations of presidential motive).
In the “outer perimeter” category, the president acts on subjects for which he shares some degree of authority and responsibility with the other branches. This includes pretty much everything not covered in the aforementioned core powers, though the full extent of the outer perimeter remains fuzzy. For acts within this broader category of official conduct, the president has “presumptive immunity.” The critical distinction is that presumptions can be overcome. The Court expressly grants the government a way to overcome that presumption: It must show that criminalizing that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
Notably, the Court does not include national security-related subjects within the “core” functions of the president—a simple read of Article I of the Constitution reveals ample responsibilities for Congress in this field. Nobody other than the president may serve as commander in chief of the armed forces, but that fact alone does not restrict Congress from imposing constraints on how much force may be used, when it may be used, and for how long (for example, the War Powers Resolution, the War Crimes Act, the Torture Victim Protection Act, the power to appropriate funds to the military, and the power to declare war). Nor does it prevent the courts from restricting how presidents may go about interrogating and trying unlawful enemy combatants, enforcing the international law of armed conflict’s prohibitions on inhumane treatment. In other words, the order to a specific military unit to use its capabilities and resources may be a tactical military decision usually under the ultimate command and control of the president. But it necessarily implicates the use of materiel and personnel for which Congress allocated funds and necessarily implicates the rules for the “government and regulation” Congress has imposed on members of the armed forces through the Uniform Code of Military Justice—which prohibits, inter alia, murder. This means that the order to assassinate a political rival, or execute a coup d’etat, as hypothesized by the dissenters in Trump v. United States is probably not the exercise of a core conclusive and preclusive Article II power protected by absolute immunity. Rather, because it ostensibly appears to be an “official act” within the so-called outer perimeter, it offers only presumptive immunity—a presumption that comes with the opportunity for the government to show that prosecuting the direction to kill political rivals poses no danger of stepping on the “authority and functions of the Executive Branch.” It is highly unlikely that there is any history, tradition, or original, textual meaning argument to suggest criminalizing that act poses such a risk.
Let’s say for the sake of argument that form of protection fails: Perhaps the command of a specific military unit to use force, even against a domestic political rival, somehow falls within the core of Article II (even though it doesn’t). The second fail-safe against the absurd circumstance of giving the president immunity for ordering such an attack is the military’s own criminal code. Service members have a legal, enforceable duty to obey only lawful orders from those authorized to give orders (violating them is prosecutable by court-martial under Articles 90 and 92 of the Uniform Code of Military Justice), and a legal excuse (and moral grounds) for disobedience under the limited circumstances of receiving an unlawful order. The issue of presidential immunity for the commander in chief—whether absolute or presumed—is absolutely irrelevant to the underlying lawfulness of the order itself. From the point of view of the military agent commanded to do some act, an order does not become lawful (and therefore binding under penalty of court-martial) merely because an order is an “official” act of the commander in chief. An order to the military to lead or execute a coup, or to assassinate a foreign head of state or domestic political rival, or to use otherwise banned chemical or biological weapons in combat abroad were unlawful before the Trump opinion, and they remain unlawful today.
The Court explicitly maintains that an act is not “unofficial” “merely because it allegedly violates a generally applicable law.” This means the criminal nature of the act is not dispositive on the question of dividing presumptive immunity from no immunity at all; but the fact that it violates a generally applicable law is what would (or should) prevent any law-abiding member of the armed forces from actually carrying out that command, regardless of whether the commander in chief is prosecutable.
The extent to which immunity flows downward (if at all) from the president to his agents is another serious concern left unaddressed by this decision. According to Lee Kovarsky, the “sloppy, broad language” in Part III.C. of the opinion raises questions about the meaning of the Court’s comment in footnote 3 of the majority opinion. There, the Court tries to answer Justice Amy Coney Barrett’s concern that the inability to introduce evidence of the president’s official acts to prove his knowledge of a false claim “would hamstring the prosecution.” The Court simply bars such evidence for it would “eviscerate the immunity we have recognized … [because] [i]t would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.” (pp. 30-31 of majority opinion). To Kovarsky, this might be read as suggesting an effect on downstream prosecutions of co-conspirators and presidential persons who followed that command, under some understanding of official duty. If applied to the SEAL Team 6 hypothetical, for instance (that is, if military service members executed an unlawful but “official” order from the president), the Court’s discussion of “official act” evidence could preclude the nature and substance of the order from consideration by the fact-finder because it might “invite the jury to inspect the President’s motivations and to second-guess their propriety” (footnote 3, p. 32). If the accused wished to raise the “I was following a lawful order” defense, this evidentiary exclusion might make that a non-starter. On the other hand, excluding “testimony or private records of the President or his advisors probing the official act itself” (footnote 3) might dissuade prosecutors from bringing charges against those actors altogether.
Two facts diffuse this concern about the reach of accountability. For one, the issue of the order itself is its lawfulness as performed by the accused, not its officialness as performed by the president, when it comes to a potential court-martial conviction for the underlying wrongful conduct. But even more important, and extending beyond just courts-martial, the only reasonable reading of the Court’s digression into evidentiary admissibility is that it relates only to the potential prosecution of the president for his unofficial acts, for which no immunity exists. As the Court says, “If official conduct for which the president is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated” (p. 31). The Court’s determination about admissibility, and its reasoning, have nothing to say at all about prosecutions of the actual actors performing the “official” or “unofficial” act at his command.
All that said, relying on the military as a fail-safe against unlawful and corrupt presidential actions (at least in the case of using the military to carry out those actions) has consequences. It implies that conventional norms and institutions respected for enforcing the rule of law, and expected to do so, are not the institutions that will do so. If Congress, representing the public, cannot enact a criminal prohibition on that specific conduct, if law enforcement is restrained from investigating and deterring such conduct, and if the courts cannot adjudicate allegations against the president for engaging in such conduct, the rule of law as we have come to believe in it has two remaining guardians: first, a president’s idiosyncratic moral beliefs, political risk-acceptance, and concern for historical legacy; second, the armed forces. While Trump has proved repeatedly that the former provides no check at all, reliance on the latter as democracy’s savior only increases the risk that the military overcomes its historic and constitutional subordination to legitimate civil authority, and a commensurate risk that the public actually wants it to.
But to be clear: The actual effect of the Trump immunity decision would not change the character of some hypothetical action the military is ordered to execute at his direction. If the underlying conduct the military member is expected to carry out violates the Constitution itself or a criminal statute (like the UCMJ)—even if it is an “official act” of the president—the military member must disobey it and cannot be prosecuted for that disobedience.
– Dan Maurer is an Army lieutenant colonel and judge advocate, transitioning from professor of national security law at the Judge Advocate General’s Legal Center and School into retirement status this summer. He will begin teaching at Ohio Northern University Pettit College of Law in August. Published courtesy of Lawfare.
