Why legal scholars agree with Sotomayor’s horrifying 'Navy SEAL' assassination scenario

03 July 2024

When the U.S. Supreme Court handed down its 6-3 presidential immunity ruling in Trump v. the United States on Monday, July 1, the most scathing dissent came from Justice Sonia Sotomayor.

The Barack Obama appointee wrote, "The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution."

Sotomayor continued, "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."

Politico reporters Kelsey Griffin, Erica Orden and Lara Seligman examine Sotomayor's disturbing U.S. Navy SEAL team scenario in an article published on July 2. And according to some legal scholars, Sotomayor wasn't exaggerating.

"As extraordinary as that prospect might sound," the Politico journalists explain, "constitutional law experts say she's right: The Court's decision in Trump v. United States really does appear to immunize a hypothetical president who directed the military to commit murder, though a president might be hard-pressed to find someone to carry out such an order."

Griffin, Orden and Seligman add, "The crux of the issue, legal scholars said, is that the decision granted total immunity for any actions a president takes using the 'core powers' that the Constitution bestows on the office. One such power is the authority to command the military."

Cheryl Bader, a former federal prosecutor who teaches criminal at Fordham University in the Bronx, shares Sotomayor's concerns about the ruling.

Bader told Politico, "The language of the Supreme Court's decision seems to suggest that because this is a core function of the president, that there is absolute immunity from criminal prosecution. If Trump, as commander in chief, ordered his troops to assassinate somebody or stage a coup, that would seem to fall within the absolute immunity provision of the Court's decision."

Claire Finkelstein, who teaches national security law at the University of Pennsylvania in Philadelphia, told Politico, "If they are given an illegal order by the president or by someone who is directly answering the president, they may be in a position that they are subject to court martial in either direction."

Read Politico's full report at this link.

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