ARGUMENT: PRESIDENTIAL IMMUNITYCan the Military Disobey Orders in the SEAL Team 6 Hypothetical?
On 1 July, the U.S. Supreme Court issued its long-awaited presidential immunity decision in the sure-to-be-landmark Trump v. United States case. The majority opinion raised significant and troubling implications, but 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? Dan Maurer writes that ‘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.”
On 1 July, 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?
Dan Maurer writesin Lawfare that unsurprisingly, the hypothetical is being raised again with increased vigor in the public and among retired general officers.
Maurer continues:
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.
