Can the Military Disobey Orders in the SEAL Team 6 Hypothetical?
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.
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.
Maurer concludes
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.