Next Thursday, former President Donald Trump's lawyers will argue before the U.S. Supreme Court that he is immune from any criminal charges stemming from actions he committed while president. This claim that the president is permanently immune from criminal prosecution for any crimes committed in his official capacity is the most dangerous claim ever made by a government official or former government official in a U.S. courtroom. It is no exaggeration to say that there is.
If this argument were adopted by the courts, the president would have permission to use the U.S. military to subvert democracy in a variety of ways, for example, in an attempt to remain in power beyond the end of his legitimate term. You will get it. The state has little recourse for his past criminal acts. One of the lesser-recognized dangers that emerges more regularly is the weakening of the military chain of command and the associated weakening of civilian control of the U.S. military. In the court brief we filed in this case, along with 13 other national security experts, including retired military officials, we argue that everyone in the chain of command is held to the same principles of criminal law accountability. ing. The United States is essential to ensuring the legitimacy of military orders and providing reassurance of their legitimacy to all levels of the chain of command. This includes the president.
Some may take comfort in the fact that officers and non-commissioned officers alike are sworn to abide by the Constitution, and that the obligation to obey orders extends only to the extent that the orders received are lawful. This means that everyone in the chain of command who receives a clearly illegal order is obligated to disobey. Consistent with this principle, “complying with an order” is not a defense to a charge of unlawfulness if the recipient of the order knows or has reason to know that the order is unlawful. After World War II, the infamous “Defense of Nuremberg” advocated by Nazi military officers in their war crimes trials was rightly rejected by the same tribunal.
But in reality, executive orders have a strong gravitational pull. Therefore, under normal circumstances, if the commander-in-chief issues an order, that order is presumed to be lawful. Wouldn't an advisor to the president prevent him from issuing illegal orders in his own interests, if not in the interests of the country? However, if the president is not subject to criminal prosecution, his lawyers may be less concerned about the legality of the order, and his subordinates will be able to decide for themselves whether following the order would put them in legal jeopardy. I'm going to do it. This could erode trust in the chain of command and could lead to different interpretations of the obligation to follow orders, thereby endangering military discipline and normal functioning. The president's impunity for criminal acts committed in his official capacity thus undermines the military's obedience to civil government, the basis of civil-military relations since the inception of the republic.
Nowhere is this more clear than in the case of constructive orders to commit war crimes. Imagine a president who orders the U.S. military to commit a massacre like the one that famously occurred in My Lai, Vietnam, in 1968. In such situations, every military member must assess for himself the legality of the order and therefore judge its weight. Has a general duty to obey orders. As made clear in the U.S. Court Martial Manual, when an order is clearly illegal, as in the case of Mirai, military personnel carry out such orders without risking significant sanctions after trial by court martial. does not exist. In less dramatic cases, where the legal status of the order is unclear and the recipient of the order fails to comply with a lawful order unless he has a high degree of knowledge that the order is unlawful. , there is a possibility that criminal charges will be filed and a trial by court martial will be held. . If you only think an order is illegal, but it is actually legal, you are almost certain to be found guilty of refusing to comply.
Against this background, the president's immunity from criminal use of the powers of commander-in-chief is untenable. Although his subordinates' obligation to obey does not extend to clearly illegal orders, orders issued by the president himself can put considerable pressure on military personnel. Military service is dangerous when everyone in the chain of command except the president can be prosecuted for both disobeying legal orders and following illegal orders, and executive orders cannot be presumed to be legal. This will be accompanied by It is both dangerous and deeply unfair to our military to subject the men and women who risk their lives to protect our Constitution to such moral and legal risk, as all military members take an oath to do so. It will become something.
Trump has not addressed any of those concerns in briefs filed by his lawyers in the case, preferring instead to focus on the risk of his political opponents wrongfully prosecuting him. He has published numerous articles ranging from corruption allegations against John Quincy Adams, to Franklin Delano Roosevelt's imprisonment of Japanese Americans during World War II, to Barack Obama's targeted killings of Americans overseas. Examples are given. Trump's lawyers argue that “in each case, his opponents later came to power with sufficient motivation to prosecute him.” However, until 2023, no former president had been indicted for acts of officialdom. ” However, as our brief asserts, there is a distinction between political rhetoric based on morally or politically controversial conduct and actual indictable crimes. The fact that prosecutors and their associated grand juries can make difficult decisions does not imply that there are actually cases of presidential crimes or that prosecutions in such cases are necessarily politically motivated. I can hardly say it. But the downstream effects of a president's total failure to take responsibility for any crime, war or otherwise, are unacceptable.
The Supreme Court has clearly rejected the doctrine of presidential immunity proposed by Trump, holding that the president is bound by the four corners of the law even in his personal life. There should be no room for doubt in anyone's mind. and official abilities. And that's because the president, like all U.S. government officials and ordinary citizens, is not above the law.
