Trump vs. The United States Immunity Decision Challenges The Relationship
Between The Military And The President
By Monte Erfourth – July 6, 2024
Introduction
This week, the Supreme Court made a decision that changed the relationship between the military and civilian leadership. In particular, it highlighted a dubious role that SEAL Team Six might play in the increasingly bitter partisan political wars our nation continues to experience. The court found that the President would be immune from criminal prosecution while conducting any official act. In exploring the issue, the court asked if the President could order SEAL Team Six to assassinate a political rival and be criminally immune.[1]-[2] The findings reveal a stunning answer. Opening the door to this possibility should inspire everyone in uniform to ask questions. These leap to mind: “Would you, as the SEAL Team Six Commander, follow an unlawful order from the President knowing he is immune from prosecution and you are not? Particularly if that meant killing Americans on American soil and that you will likely be relieved for failure to follow a Presidential directive?” As of Monday, these are questions a military commander may face.
Trump v. the United States declared all official Presidential acts beyond criminal prosecution. In short, the court grants the Executive branch absolute immunity from acts deemed “core powers.” It leaves the question of what core powers are unsettled. Still, it adds to the confusion by explaining that the President also has peripheral powers that maintain the presumption of immunity. There is no standard or definition given to clear this up. The court further adds that no official acts can be used as evidence for personally committed crimes. The bottom line is that it shifts legal jeopardy off of the President and onto his staffers, cabinet heads, lesser officials, and uniformed personnel who might follow an unlawful order from the President. For the first time in the 248 years of our union, the President, an elected official, faces no criminal liability for issuing an unlawful order.
This immunity creates a new hazard for every current and future armed forces member. It is not new that following an unlawful order risks criminal prosecution. It is also not new that refusing an order deemed unlawful risks violating Article 92 of the UCMJ and possible court martial. What is new is that the Commander in Chief faces no possible criminal liability for issuing an illegal order. The military assumes all the risk once that order is issued. It is the proverbial rock and a hard place for everyone in the Executive branch’s chain of command, from the Secretary of Defense to the E-1.
The legal jeopardy is clear and stark for the Department of Defense. Being Commander in Chief of the U.S. Armed Forces, as prescribed in Article II of the Constitution, is clearly a core function of the Executive and immune from criminal liability. The legal jeopardy will now be the civilians and uniformed personnel to bear; the President will never share those concerns. It is simply a matter of time before this corrupt path to expanded power tempts a politician. This article examines the Trump v. the United States immunity decision and explores the profound ramifications for the military.
Trump vs. The United States Findings
In the Supreme Court case of Trump v. United States, Chief Justice Roberts delivered an opinion addressing the indictment of former President Donald J. Trump. The Court examined the scope of Presidential immunity from criminal prosecution. The decision changes the relationship between the President and all those he has the authority to direct in performing his Constitutional role. The Executive branch’s authority and reach were expanded because the rule of law no longer applies in whole or part to official and peripheral acts by a President.
The Court held that the President must be immune from prosecution for exercising core constitutional powers to ensure the effective and independent functioning of the Executive Branch. This absolute immunity applies to actions within the President's exclusive constitutional authority, such as the power to pardon or remove executive officers, the Commander in Chief of the military, treaties, and appointing ambassadors and officers to lesser posts as defined in Article II.
This ruling creates some peculiar and problematic potential scenarios for the armed services. While on appeal in the D.C. Circuit Court, Judge Florence Pan asked if the scenario of a President ordering SEAL Team Six to assassinate a political rival would be considered exempt from criminality for a President with absolute immunity.[3] The Trump legal team concurred it would. In Oral Arguments at the Supreme Court, the legal team was asked the questions again by Justice Soto-Mayor. The response was that such an order would be official and immune from criminal liability but would remain an illegal order by the President. D. John Sauer presented oral arguments on behalf of Trump and, as part of his argument, said while the President could issue such an order, the UCMJ and criminal law would prevent the military from following such an order.[4] The President might be impeached for directing a military coup or assassination, but the onus of responsibility to decline such an order now falls on the military.
Unfortunately, the court left a lot that is unclear. The Court declared that there is no immunity for a President's unofficial acts; it also said that nothing in executing an official act can be used as evidence of personal criminal wrongdoing. The Supreme Court's decision in Trump v. United States creates vague standards to delineate the scope of Presidential immunity, granting absolute immunity for official acts within the President's exclusive authority, presumptive immunity for official acts within shared authority with other branches of government, and no immunity for unofficial acts. However, it developed a new notion of core and periphery powers open to broad interpretation. It also made it possible to be in the commission of core powers while engaged in simultaneous criminal wrongdoing. However, immunity would protect this wrongdoing if conducted with other government officials and using government infrastructure. Even more mysterious is how the President could be found criminally liable for taking a bribe, treason, high crimes, or misdemeanors. These things are explicitly mentioned in the Constitution as offenses but now have almost no way to be tried other than by impeachment.
Because no evidence can be presented from official acts, nothing criminal can be charged or demonstrated. Even the President’s motive cannot be questioned. The case was remanded for further circuit court proceedings to apply these principles to the specific allegations against former President Trump. Perhaps the circuit court judges will clarify these executive powers and their relationship to immunity, but that might take years. In the meantime, the current and future Presidents are immune from prosecution for whatever they order the military to do.[5] The repercussions for civil-military leadership are severe and mandate further explanation.
Implications For the Civil-Military Relationship
This case has profound implications for the scope of Presidential immunity, particularly concerning the President's actions as Commander in Chief of the military under Article II of the Constitution. The ruling declares that the President possesses absolute immunity from criminal prosecution for actions deemed part of their "core powers," including directing military operations. Under the Uniform Code of Military Justice (UCMJ), Title 10 of the U.S. Code, and federal and state criminal laws, any military member executing such an order would be subject to prosecution for committing crimes, as the illegality of the act remains unaffected despite the existence of a Presidential directive.[6]
In Justice Sotomayor's dissent, she elaborates on the potential chaos such unchecked power could unleash. If the President were to order the assassination of a political opponent, the military personnel involved would be in a precarious position. They would have to choose between obeying a direct command from the Commander in Chief or adhering to legal and ethical standards that prohibit unlawful killings. This situation would likely lead to court-martials and criminal charges against those who complied with the order.[7] But once done, no impeachment or loud public protests can bring back the slain rival. In a Machiavellian sense, it is all upside for a President so inclined.
Some might find the SEAL Team Six scenario far-fetched, including Justice Roberts. But it is unclear why. The framers of the Constitution were concerned with the separation of powers, especially with checking the Executive's power. They did not want an Executive with the powers of a king, who was traditionally beyond the law. They intentionally did not include immunity for the President and created a power-sharing arrangement between the Congress and the President to lessen Presidential power. Much of each element is missing in this ruling for a court that claims “text, history, and tradition” as its primary approach to the law.
The following potential scenarios highlight the military's perilous position. Could President Biden declare Trump an enemy? Could President Biden then direct the military to detain the former President? Could Biden then direct the Department of Justice to establish an ad hoc tribunal to convict and potentially execute Trump as a traitor? Biden would face no criminal charges if he used official channels and means. Or, why not declare an insurrection during the Republican Convention and send the military police to arrest the Republicans for plotting to overthrow the government? What’s stopping him from trying something like this? His lawyers? His character? Tradition? His conscience?
Conversely, could a newly reelected President Trump seek revenge on Biden and direct MARSOC or the 82ndAirborne to kill Biden? Yes, he could. It would be unlawful, but he could order it. He, too, could declare an insurrection and physically threaten his rivals or protesters or order the military to shoot immigrants crossing the border. Any President could fire any commander refusing such an order because firing is now an official act. The same would apply to any Secretary, Assistant Secretary of Defense, or Deputy for refusing to support an unlawful order. There is no penalty for the President other than possible impeachment or negative public opinion. There is little to no recourse for the fired civilian or relieved commander. If you are a murdered political rival, protestor, or immigrant, no court or impeachment can restore your life. Serving as a senior leader defending our homeland just got more precarious.
Should anyone in the military follow a Presidential directive that might be unlawful? “The boss said so” is not a good legal defense, as the Nuremberg trials revealed. Like all Presidential directives, it would have to pass the scrutiny of military Judge Advocates and the judgment of civil-military leadership. If the new Trump administration removes all Schedule F civilians and replaces them with loyalists, as is likely, the military could face a situation where the civilians support the unlawful order and try to strong-arm the military to follow suit.[8]This will put extreme pressure on uniformed leadership to uphold the law and our Constitution while risking their career and reputation. Their moral courage will be severely tested.
What Should the Military Do?
The ruling underscores the critical need for military and civilian officials within the Department of Defense to exercise extraordinary caution. They must be vigilant in assessing the legality of orders, especially those in the gray zone of legality. Disobeying an illegal order is not just a matter of ethical duty but a legal imperative to avoid prosecution and maintain the rule of law. The potential for a President to exploit their immunity while leaving subordinates exposed to legal jeopardy necessitates a robust system of checks and balances within the military and the broader executive branch.
Sustaining and reinforcing a culture prioritizing allegiance to democratic values and the Constitution over individual leaders is more important than ever. The military not only needs to guard against the misuse of power in domestic civil and political matters that go beyond the intent of the Constitution, but it must also prevent a future President from creating military units that may be loyal to him instead of to the country or constitution.
Robust civilian oversight ensures that the chain of command remains accountable to the people by placing democratically elected leaders above military leaders. However, when a President has protections that go beyond the law, military leaders must be cautious about the motivations of civilian leadership. It is important for politicians, civil officials, and military members to equally promote transparency and accountability to prevent any single political leader or institution from having undue influence. The military must also ensure that a diverse and representative recruitment process is followed to reflect the society it serves. This would reduce the likelihood of factionalism and shifts in personal loyalty.
Rigorous training and education programs must emphasize democratic governance. Strong internal mechanisms must be established to detect and deter any attempts to politicize the military. Most importantly, it is the duty of the President to protect the nation from any abuse of power. It is a national imperative to elect individuals with the character and commitment to ensure that democracy and the people come first. However, if a person with a tyrannical nature is elected and seeks to use the military to consolidate power, the last line of defense protecting American citizens will be those in uniform who are willing to say "no."[9]
Conclusion
While the President may now have immunity from criminal prosecution for directing the military to commit unlawful acts, this protection does not extend to others who follow these orders. The legal frameworks governing military conduct and federal criminal law ensure that those below the President remain accountable for their actions. The Supreme Court’s ruling places a heavy burden on military and defense officials by increasing the likelihood a President will issue unlawful commands. Their understanding of the law and commitment to upholding the Oath of Office is our best way to safeguard the integrity of the military and the principles of American democracy.
This has always been the case. The military has always put orders under legal scrutiny. That’s part of upholding the rule of law and defending the Constitution. However, the new power of Presidential immunity has changed the dynamic dramatically. No longer is the burden of criminal proceedings mutually shared. The President does not have to fear acting unlawfully. This is a dangerous possibility for a nation under the rule of law. Some impacts should be immediate. No American joins the military to become the brute enforcer of criminal Presidential behavior or to physically menace their fellow citizens on the whims of the President. It is inherently unconstitutional to do so, but the fact that it could happen may further dampen recruitment efforts. Senior leadership may find their trust in civilian leadership eroded. Commanders in the field may be less inclined to act on White House directives. Other cascading problems could result from this ruling, but it is hard to imagine more good than bad coming from it. Time will tell us if our nation can endure this extreme expansion of Presidential powers. The military must double down on the Oath of Office and guard the people from this new potential for Presidential mischief. Good character and judgment better hold firm in our flag-grade officers; the nation's fate is in their hands.
[1] Griffin, Kelsey, Erica Orden, and Lara Seligman. "The terrifying SEAL Team Six scenario lurking in the Supreme Court’s immunity ruling." POLITICO, July 2, 2024. [Politico Article](https://www.politico.com/news/2024/07/02/trump-immunity-murder-navy-sotomayor-001SixSix385)
[2] Bump, Philip. "The perfectly valid Presidential-immunity murder hypothetical." The Washington Post, July 2, 2024. [Washington Post Article](https://www.washingtonpost.com/politics/2024/07/02/Presidential-immunity-murder-hypothetical/)
[3] https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7090A350785258ABB0052D942/$file/23-3228-2039001.pdf#:~:text=URL%3A%20https%3A%2F%2Fwww.cadc.uscourts.gov%2Finternet%2Fopinions.nsf%2F1AC5A0E7090A350785258ABB0052D942%2F%24file%2F23
[6] Griffin, Kelsey, Erica Orden, and Lara Seligman. "The terrifying SEAL Team Six scenario lurking in the Supreme Court’s immunity ruling." POLITICO, July 2, 2024. [Politico Article](https://www.politico.com/news/2024/07/02/trump-immunity-murder-navy-sotomayor-001SixSix385)
[7] Ibid.
[8] Heritage Foundation. "Project 2025." January 31, 2023. Accessed June 25, 2024. https://www.project2025.org/.
[9] Ozan Varol, "The Democratic Coup d’État," Military Review, 2012. Accessed July 5, 2024.
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