ACTUALLY, THE PRESIDENT CAN'T MURDER PEOPLE WITH IMPUNITY

National Review

 

Actually, Presidents Still Can’t Murder People with Impunity

By DAN MCLAUGHLIN

July 1, 2024 8:11 PM

 

It’s perfectly fine to quibble with this morning’s Supreme Court decision on the scope of presidential immunity for official acts, and I’ve got my share of quibbles of my own (see my column). But Democrats, the Court’s liberals, and left-leaning voices in the media are leaning into two ridiculous arguments: that this decision turns presidents into kings, and that it gives them a green light to murder political opponents without consequence.

 

On the first point, of course, presidents are still not kings. They can be voted out of office: If Donald Trump was a king, he would not need to ask the voters to give him his job back. They can serve no more than eight years. They can be impeached by the House and removed by the Senate. They can give orders to the executive branch to do things, and courts can issue orders to stop those things from happening. They can’t write their own laws. As the Court reminded us in just the past week, the agencies who report to the president can’t run their own court systems or decide the scope of their own authority. And presidents, like anyone else, can be civilly sued or criminally charged for their private acts, even those taken during their time in office. That’s why Trump himself is reporting ten days from now to a Manhattan courtroom for criminal sentencing over checks he wrote at his desk in the Oval Office, for which he was hauled before a jury by a county prosecutor. It’s why a state attorney general was able to sock him with almost half a billion dollars in fines.

 

There are also a great many things that presidents can’t control. When Trump tried to overturn the election to retain power, he was given a remedial civics course in what presidents can’t control. The vice president refused his orders. So did every state governor, state legislature, and secretary of state he asked. So did the bulk of his own party’s caucus in the Senate. The federal and state courts, even those staffed by judges he appointed, turned him back at every pass. Many of those people are still in office.

 

That brings us to the murdering. Here’s Justice Sonia Sotomayor:

 

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Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder…When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

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Leave aside bribery, given that the majority opinion explicitly discussed how a president could still be prosecuted for bribery under its reading of the law. Here’s Justice Ketanji Brown Jackson:

 

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Even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics . . . or one who indisputably instigates an unsuccessful coup . . . has a fair shot at getting immunity under the majority’s new Presidential accountability model. . . . While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death. Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.

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Let’s walk through this. One of the president’s core powers (the commander-in-chief power) unquestionably authorizes him to have people killed. (The removal power does not.) And yes, in some circumstances, that power may apply to American citizens (Justices Sotomayor and Amy Coney Barrett discuss the case of President Barack Obama having Anwar al-Aulaqi killed by drone strike) and on American soil (in 1863, Abraham Lincoln ordered — in at least arguable accord with the laws of war of the day — that Confederate soldiers would be executed in one-to-one reprisal for Confederate executions of black Union soldiers “killed in violation of the laws of war”).

 

It is nonetheless a power constrained by law before it is even carried out. Let’s say that Joe Biden wishes to have Trump killed. First of all, it is unlikely that Biden has individual special-ops teams on speed dial. Even when the commander in chief must act with great alacrity, there is a chain of command. Even a president bent on going around the defense secretary would at some point need to engage a general officer, then go through him or her to get the SEALs involved. We’re now talking about a much larger conspiracy. All of these people have sworn independent oaths to the Constitution and are bound by the Uniform Code of Military Justice to obey only lawful orders. All of them know that they could and would be prosecuted for an unlawful killing, even if the president would not be. Special operators work at the outer limits of what the law allows in terms of killing, capturing, and invading — but precisely because of that, they are deeply sensitive to ensuring that they know what the mission and the legal rules of engagement are. They have their own legal advisers (recall that Ron DeSantis, when he was in Iraq with the Navy, was detailed full-time as a legal adviser to a SEAL team). A flagrantly unlawful assassination of a prominent American politician would face formidable practical hurdles in getting carried out by these people.

 

But what if it did? What if the president had a hard core of devoted followers in the military who believed that he needed to kill someone to prevent an election from being stolen, democracy being ended, and Jim Crow 2.0 reinstated? Or what if the president and a few well-placed White House aides succeeded in picking a target and then deceiving a drone operator or a SEAL team as to the identity of the target? And what if this was accomplished with sufficient speed and/or secrecy that none of the other available constitutional checks could be brought to bear?

 

There would be no shortage of potential consequences. The president could be impeached and removed from office, unless you really think senators of his party would face no public consequence for acquitting him in such an extreme case. Everybody else involved could face life in prison and/or capital punishment. The president’s party would face ruination at the polls. A vindictive Congress could abolish whole military units and end scores of careers of officers even tenuously related to the plot. If he tried to wall himself off with pardons, the president could be stripped of Secret Service protection and left to the mercies of the mob. And if the president actively misled the military not as to some details but as to whom they were killing, because the president was operating domestically without the slightest fig leaf of military justification, the Court’s framing of the immunity inquiry would likely leave a lot of running room for a prosecution.

 

True, we judge a legal rule by what it permits to be done. But every legal rule that allocates power has some reductio ad absurdum at which it ends badly if all the checks and balances and safeguards and incentives — and even the people themselves — break down. The fact that it requires such an improbable chain of horribles to come up with a way in which this could be accomplished is a pretty clear sign that we’re dealing with the rarest of the rare cases, far beyond anything even Trump has conjured into existence. The Framers, cautious as they were, would have told us that if we reached that place and it was let go by the entire political system and the people, our republic was already lost.