Trump criticized Rosen for not using the Justice Department to maintain his power — Rosen argued that doing so would violate the law and the Constitution — so Trump pulled a cavalry sword from the wall and chopped off Rosen's arm.
Not really! The rest of this scenario happened, but the sword part didn't. But if it had happened, it would have been good news for Trump: under the standards set out by the Supreme Court on Monday, he would not have been criminally liable for dismembering the acting attorney general's body.
Following the court ruling Trump vs. the United StatesIn this case, which held that the president has broad immunity from prosecution for official conduct, one hypothesis has dominated public opinion: the hypothesis stated in Justice Sonia Sotomayor's dissenting opinion.
“when [the president] “When a president exercises public power in any way, the majority reasoned, he is immune from criminal prosecution,” she wrote. “Ordering Navy SEAL Unit 6 to assassinate a political opponent? Immunity.”
Justice Sotomayor didn't invent this scenario. During oral argument in the case, she asked the lawyer representing the former president whether it was an act of official duty that warranted immunity if a chief executive “determines that a rival is corrupt and orders the military or orders someone to assassinate him.” The lawyer responded, “That may well be an act of official duty.” A little later in the conversation, it was Justice Samuel Alito who floated the idea that a theoretical assassin could be a member of SEAL Team Six.
In an interview with Fox News on Monday, Attorney General Barr himself rejected the theory, saying it “just doesn't make sense.”
“The president has the power to protect the country from foreign enemies, armed conflicts and so on,” he said. “He has the power to direct the justice system against domestic criminals. But he doesn't have the power to assassinate people.”
“It doesn't matter if he uses SEAL teams or he uses civilian hit men,” Barr continued. “That's not an exercise of his power. So all of these horror stories are lies.”
In her concurring opinion, Justice Ketanji Brown Jackson laid out specific scenarios in which a president might be immune from prosecution, which broadly mirrored the Oval Office debate of 2021 and focused on the president's apparent power to fire his cabinet members.
“For example, a president may have the discretion to fire his attorney general, but the question at stake is whether the president has the option to remove the attorney general, such as by poisoning him,” Jackson wrote.
She went on to say that a distinction is being made between the power of the president and the ways in which that power is exercised: firing him with a tweet, poisoning him, or chopping off his arm to make him step down. These are all just different ways in which the president is doing his job.
Barr's point is that the president can't just send in a SEAL team to kill somebody. But of course, the president can. can Please do. Barack Obama sent a team of SEALs to kill Osama Bin Laden in 2011.
Before doing so, a team of government lawyers met to assess the legality of the move and establish legal arguments that could be presented if the move was questioned after the fact. Monday's Supreme Court decision should have avoided some of that, by reducing the legal questions that could have arisen from the decision. But after the operation was successful, few such questions arose.
That same year, President Obama found himself in an even more difficult position when he authorized the killing of a US citizen in a drone strike. According to a government memo prepared before the attack, the US citizen, Anwar Awlaki, had collaborated with al-Qaida, meaning he was a viable target under the terms of the use-of-force authorizations passed after the September 11 attacks. The killing sparked a fierce debate about the limits of presidential power.
The manner of each assassination is not important; what matters is that the person was deemed capable of being killed. When a president removes an opponent for national security reasons, the manner theoretically does not matter for purposes of immunity, just as the means of removing a problematic attorney general does not matter. Attorney General Barr has laughed off this assumption, saying that the use of SEAL teams is “not an exercise of authority.” But the problem is that killing could theoretically fall within the scope of authority, and again, the method would not matter.
Will Trump and his loyal staff use their powers to enforce his will? Will he, for example, claim that his opponents have committed treason punishable by death? Can he find staff to support such an effort? Will he find a judge or two to side with him? Yes, it is. Look at his speeches, look at his social media posts. Look at the example above about Jeffrey Clark and the 2020 election. Look at what happened after the 2020 election.
And look at the decision Trump vs. the United StatesThis was premised on Trump being federally indicted for trying to overturn the election results. Indeed, Trump's attempt to install Clark at the Justice Department was indirectly mentioned as permissible in Chief Justice John G. Roberts Jr.'s majority opinion.
Was he trying to make the transition of power more likely by attacking government officials who disagreed with him with a sword, or by summoning SEAL Team Six to the Oval Office to intimidate Rosen and co.? Well, that's just the president doing presidential things, isn't it?
