Supreme Court ruling on immunity raises questions about military orders

(The Hill) – The Supreme Court’s stunning decision granting presidents immunity from prosecution for official acts raises serious questions about the orders the commander in chief gives to the military, especially if those orders clearly violate U.S. or international law.

A commander in chief with broad immunity from criminal prosecution would have greater power and latitude to issue controversial orders that the military is in most cases obligated to carry out in accordance with the chain of command.

The Supreme Court’s decision, which follows a case related to former President Trump’s efforts to overturn the 2020 election, has raised widespread concerns about an abuse of power using the military, but also particular concerns about Trump, who has vowed revenge if he regains the White House.

While legal challenges could be filed in the future, experts say the ruling does not extend immunity protections to commanders and enlisted personnel who carry out the president’s orders.

Victor Hansen, a law professor at the New England School of Law in Boston, said the military must still adhere to legal norms even if the president does not and said the Supreme Court’s decision “reverses the dynamic.”

“You now have subordinates who have not all the authority but all the responsibility,” said Hansen, who spent 20 years as a military lawyer in the U.S. Army. “And you have a man at the top who has all the authority but no responsibility.”

“This is, in my humble opinion, an absurd and damaging decision,” he added.

The ruling came in response to a challenge by Trump’s legal team to a case in Washington, D.C., courts related to the January 6, 2021, riots and other efforts by Trump and his allies to retain power after the 2020 election. His lawyers are now arguing that the ruling should apply to a separate case in Florida, where he is accused of illegally retaining classified documents, including national security materials.

During legal arguments in January, Trump’s lawyers argued that a president should enjoy broad immunity from criminal prosecution as a former leader, even if he were to order the assassination of a political rival using the elite SEAL Team Six.

Trump lawyer John Sauer told a three-judge panel of the Washington, D.C., appeals court that a former president can only be criminally prosecuted if he has been tried and convicted by the Senate.

The argument was widely dismissed as ridiculous at the time; James Pearce, a lawyer for special counsel Jack Smith, who is overseeing Trump’s federal convictions, told the justices that Sauer had described a “frightening future.”

“What kind of world do we live in … if a president orders his SEAL team to assassinate a political rival and then resigns or is not impeached — that’s not a crime?” Pearce said at the time.

Trump’s arguments failed in the appeals court in Washington, D.C., leading to an appeal to the Supreme Court, which has a conservative majority after Trump appointed three lifetime justices to the high court.

On July 1, the Supreme Court ruled 6-3, along ideological lines, to grant the president absolute immunity for actions that fall within the “fundamental constitutional powers” ​​granted when he took office in the Oval Office.

U.S. Chief Justice John Roberts has argued that a president is already immune from civil liability for acts committed while in office and that this protection should be extended to criminal prosecutions to ensure that the executive branch can effectively carry out its duties without fear of prosecution.

But the progressive justices sharply dissented. Justice Sonia Sotomayor, in a scathing dissent, referred to the scenario of SEAL Team Six or a commander in chief staging a military coup, saying the Supreme Court had given the president a “loaded gun” by granting such broad immunity.

“Even if these nightmare scenarios never come to pass, and I pray they never do, the damage is done,” she wrote. “The relationship between the President and the people he serves has changed irrevocably. In every exercise of his official power, the President is now a king above the law.”

Congressional Democrats also reacted with concern to the decision.

“Under this ruling, if a president, in the exercise of his official duties, orders the military to kill other Americans — judges, elected officials, journalists, your neighbor — they can do it,” said Rep. Zoe Lofgren (D-Calif.). “I think most Americans, and I’m one of them, think that should be a crime.”

While a president can still be criminally prosecuted for unofficial acts, any order given to the military is clearly an official act. A U.S. military member would not enjoy the same immunity as the president, but the White House could also grant a pardon for loyalty. 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, such as using a Navy SEAL team to assassinate a political rival, are unlikely because a president would want to avoid blatantly breaking the law, even if he faces no legal consequences.

Instead, he discussed more “subtle” scenarios, such as when Trump tried to invoke the Insurrection Act in 2020 to suppress Black Lives Matter protests with the military and National Guard.

“It encourages abuse of power. If you’re president and you don’t see any negative criminal consequences for ordering what all the lawyers around you say is illegal,” Corn said, “and you don’t really care about the political consequences because you’re not afraid of being impeached, what’s holding you back?”

“Turning the military into a tool to advance your political agenda carries risks,” he added.

The U.S. military is required to carry out lawful orders unless those orders are clearly unlawful, although that distinction has always been blurred.

The Pentagon and each of the military branches have attorneys with the Judge Advocate General (JAG) Corps that service members can consult in such cases.

Pentagon spokesman Maj. Gen. Pat Ryder stressed after the decision that the military follows the Uniform Code of Military Justice, which sets out criminal law and military-specific codes, such as desertion or disobeying a superior commander.

Ryder said attorneys are still available and that doesn’t change after the Supreme Court decision.

“This will enable any leader, whatever decision or order they are considering, to make informed legal and ethical decisions,” Ryder said at a briefing Tuesday.

In addition to White House lawyers who can justify a president’s decision, a group of senior lawyers, such as the Army’s general counsel, can also propose controversial or illegal orders.

That could come into conflict with JAG attorneys at the lower end of the chain of command, who might see an order as clearly illegal, creating “chaos” in the ranks, said Texas Tech’s Corn.

“Ultimately, the person who is at 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 will come in and say that everybody who participated in implementing this order committed a crime?'” he said.

“Or do I disobey the order and take the risk that the current president will prosecute me for willful disobedience of an order?” he added.

Eugene Fidell, a visiting professor and senior fellow at Yale Law School, said the Supreme Court “rolled the dice for future presidents” and will force the military to roll the dice as well.

“People are trained to follow orders, not resist them,” he said.