Now Is the Time to Understand Presidential Immunity
Once restored to power, Trump, in a state of self-proclaimed emergency, can shoot disobeying immigrants and protesters with immunity. But the military under his command cannot, engendering chaos.
In the run-up to Trump's second term, at a time when he is publicly declaring his intention to deploy the military in service of mass deportation, now is the season to understand the dangers the Supreme Court’s presidential immunity ruling, TRUMP v. UNITED STATES, 603 U.S. 593 (2024), has introduced into executive control of the military.
This is not political or military science fiction.
On July 1, 2024, a day of infamy, the Supreme Court ruled that the president of the United States enjoys immunity for all “official acts.” This new executive power includes actions undertaken by the commander in chief in connection with declarations of national emergency and invocations of the Insurrection Act.
What that means, by the letter of TRUMP v. UNITED STATES, 603 U.S. 593 (2024), is that in states of emergency Trump will possess lasting immunity for anything he does demonstrably related to his official work as commander in chief of the armed forces.
And, yes, make no mistake about this hypothetical: the Supreme Court ruling grants a president unambiguous immunity for ordering a soldier under his command to hand him a M17 pistol or M4 assault rifle, which the president then turns lethally upon targets he deems to be agents of civil disorder or disobedience in a crackdown.
However, unlike the president, subordinate generals, colonels, lieutenants, sergeants, and privates do not possess immunity for actions taken, even when issued by a superior officer. The president, of course, is the commander not only of all military officers but also of the 1.3 million active-duty members serving today.
The legal situation is treacherous if the president orders a subordinate to fire upon a crowd of immigrants or protesters during a state of emergency. In this case, the subordinate is bound by two conflicting sets of federal law, chain of command and legality of acts—including a risk to the soldier of criminal prosecution.
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This bizarre double standard, the product of TRUMP v. UNITED STATES, sets the nation on a possible course towards military chaos and breakdown. According to Secretary Ray Mabus, former U.S. Secretary of the Navy, the ruling may thrust the military into “a nightmare scenario” that may be “democracy-ending.”
According to Justice Sonia Sotomayor, who wrote a scathing 29-page dissent to the 6-3 ruling, the majority’s grant of blanket immunity for official presidential acts seems to supersede even “generally applicable criminal law prohibiting murder.”
Under the new paradigm, Sotomayor continues, “whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity.”
There are no solutions to the problem of Trump in the Oval Office for another four years, except the remote possibility of removal through impeachment and conviction or the exercise of the 25th Amendment on grounds of incapacity or disability. That leaves us with the execution of mitigation strategies, like organizing, litigation, and nonviolent resistance.
Justice Sotomayor gives numerous examples. One is the case of a president ordering “the Navy’s Seal Team 6 to assassinate a political rival.” Another is a president who chooses to remove a cabinet member from office (a constitutional act) by “poisoning him to death.” In both cases, she concludes that when the president uses official powers in these ways he will be presumed “immune.”
“With fear for our democracy, I dissent,” Sotomayor ends her opinion.
Let’s now return to the more probable scenario of Trump ordering the military to take action that contradicts both longstanding policy and tradition as well as federal law, digging deeper into the specific concerns of Secretary Mabus.
“If the president is above the law and can issue illegal orders at will and without accountability, then members of our military can be thrust into a nightmare scenario where they’re forced to choose between obeying an unlawful order or following their duty to disobey.”
Retired Secretary of the Navy Ray Mabus
Here’s the scenario Mabus lays out in his public warnings against unbound presidential immunity. His predominant concern is not with Trump personally perpetuating violence upon protesters or undocumented immigrants but with a truculent president’s orders to subordinates:
Imagine a large group of activists assembled outside the White House, peacefully protesting a recent decision by the president. They are waving signs denouncing the new policy, holding banners demanding change and chanting slogans about that president. As their numbers begin to swell, as their voices grow louder, the president issues an order to military commanders: Take them out.
Mabus underscores the anguishing position the Supreme Court has put officers in. While the president is immune from prosecution in this circumstance, the officers and soldiers are not:
Our military leadership would then be faced with an impossible choice. They’d either have to follow the clearly unlawful order of their commander in chief, and commit crimes for which they could be prosecuted, or openly defy that order.
And, what will be the result of officers’ and soldiers’ defiance of the orders of their superiors? In a word, chaos.
And, as we know, Trump deploys chaos more than any other strategy as a means to test boundaries and to harass and intimidate others into silence and obedience:
Taking this one step further, how do service members throughout the chain of command respond if there is an order coming from the commander in chief demanding that they do something illegal and another coming from the top of the military leadership telling them to disobey? There would be chaos as each unit commander and each individual service member decided which to follow. This would inevitably destroy the United States military as a fighting force and as a defender of democracy.
“These are,” Mabus concludes, “the incredibly big, country-defining—possibly democracy-ending—stakes” facing Americans in the age of Trump.
Today, two months out from the inauguration on January 20, is not a time for complacency or denial of perilous potentialities. Rather, we are entering a four-year period of trial that demands careful analysis, detailed understanding, and earthquake-equivalent preparedness.
That is why I am sharing these facts of the law and the disquieting viewpoints of Justice Sotomayor and Secretary Mabus and why I will continue to research and write about the threats the second Trump administration poses to our democratic institutions and domestic tranquility.
We are entering a four-year period of trial that demands careful analysis, detailed understanding, and earthquake-equivalent preparedness
FURTHER READING, LISTENING, AND WATCHING on presidential immunity and the military:
The US will reap what it has sown. What is clear is that it will be a well deserved harvest.