After the Supreme Court granted immunity this week to presidents and former presidents for “official” acts undertaken while they are in office, that much publicized lawyerly hypothetical about a SEAL Team 6 member assassinating a president’s political rival on orders from the Oval Office became less hypothetical.
As SCOTUS Justice Sandra Sotomayor wrote in her withering dissent, part of a series of scenarios she presented for which a president could not be prosecuted: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” Sotomayor wrote.
The SCOTUS does not make legal an order to assassinate a rival, though it renders such an order legal in a de facto sense, as the president who gave it would be protected from prosecution.
The illegality of the act, however, could subject to court martial any soldier carrying out such an assassination order, since only the president would be immune and the political homicide itself remains a crime.
Yet even that scenario may not be enough to compel a potential assassin to break the chain of command and ignore the order, since as Claire Finkelstein, professor of national security law at the University of Pennsylvania, told Politico, the president could then pardon the assassin, giving the killer a form of absolute immunity also.
[Conversely, the military assassin could also face the death penalty as a result of a court martial for failing to follow a direct order, which (during war time) is one of 15 offenses that can trigger the death penalty.]
“If they are given an illegal order by the president or by someone who is directly answering the president, they may be in a position that they are subject to court martial in either direction,” Finkelstein says.
Finkelstein, who also directs the Center for Ethics and the Rule of Law at Penn, cautions that the scenario made possible by the SCOTUS immunity decision could profoundly disrupt the military chain of command and inject chaos into how the military functions. And the military is hardly the only aspect of the rule of law that potentially suffers debilitating effects as a result of the decision, as seen in the tweet below.
A president who uses his constitutional powers to obstruct justice by removing the special counsel investigating HIM may do so with impunity as long as he gives no reason for his decision? Or can he openly say he did it to obstruct his own investigation and still claim immunity?
— Claire Finkelstein (@COFinkelstein) July 1, 2024