Former military leaders would 'refuse' Trump order to kill political rivals: SCOTUS amicus brief

19 March 2024

During oral arguments before the DC Circuit Court of Appeals in January — as part of Donald Trump's argument that he should have absolute immunity from federal prosecution — Trump lawyer John Sauer suggested a US president "could order the assassination of his political rival and not ever face prosecution unless the House successfully impeached him and the Senate convicted him for that crime."

Last month, the US Supreme Court agreed to hear oral arguments on April 25 from Trump lawyers in the MAGA hopeful's quest to claim absolute immunity — which many legal experts view as a favor to Trump in his effort to delay his trials until after November's election.

Politico's Kyle Cheney shared a court filing Tuesday, March 19 via X/Twitter, writing, "Three former military officers — including two who advised Trump — filed a brief with the Supreme Court arguing that even if a president ordered the military to assassinate a rival, the military would refuse to do it."

The three ex-high ranking officers' "military and Pentagon service spans more than a half-century, under ten Presidents of both political parties and widely divergent policy agendas," according to the brief.

The former military leaders include: Secretary Robert Wilkie, who served in the Pentagon under former President George W. Bush, and later under Trump, retired Lieutenant General Keith Kellogg, a Vietnam veteran who served in the Trump Administration as Executive Secretary and Chief of Staff of the National Security Council in the White House and retired Lieutenant General William Gerald "Jerry" Boykin, whose career "included the attempted rescue of Americans in the Iranian Hostage Crisis under President Jimmy Carter."

"Could a President order SEAL Team Six to assassinate a political rival?" Wilkie, Kellogg and Boykin write. "That question was posed by a member of the panel at oral argument in the court below. Amici curiae, who have served as military combat generals and senior officials at the Pentagon and have held other senior Executive Branch positions, submit that the answer to the panel member’s question is a resounding no."

The former leaders go on to argue, "The President has broad authority to issue military orders, with some noteworthy limitations. One such limitation is that the President has no authority to order the military to assassinate someone because he is a political rival. Nor would the military carry out such an unlawful order. Under the Uniform Code of Military Justice (UCMJ), any military officer who carried out or issued such an order would commit the crime of murder. In addition, Executive Order 12333 prohibits any person employed by the U.S. government from engaging in, or conspiring to engage in, assassination. Thus, no military officer has the legal authority to issue or carry out an order requiring murder or assassination."

The three men emphasize, "Accordingly, the answer to the panel member’s question is no — the President cannot order SEAL Team Six to assassinate his political rival and have the military carry out such an order."

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