As the Supreme Court gets ready to hear oral arguments in Donald Trump’s presidential immunity case, the former president’s allies are working to tamp down any concerns the justices might have about one of the more absurd and disconcerting arguments offered by any Trump lawyer ever: that a president would have to be impeached and convicted before he could be prosecuted if he were to, hypothetically, order the assassination of a political rival.
The America First Policy Institute, a think tank led by former top Trump advisers and allies, filed an amicus brief with the Supreme Court last month arguing that the justices should not consider this hypothetical in their decision, because the military would never follow such a command. “A president cannot order an elite military unit to kill a political rival,” says the brief, adding: “The military would not carry out a patently unlawful order from the president to kill non-military targets.”
The organization’s brief was filed on behalf of former Veterans Affairs Secretary Robert Wilkie, retired Lt. General Keith Kellogg, and retired Lt. General Jerry Boykin. Kellogg added in a press release that “my time with [former] President Trump allows me to state without equivocation, he would never issue or consider such an action.”
Unfortunately, according to Trump’s former Defense Secretary Mark Esper, he as president did suggest to senior administration officials that they should order U.S. troops to open fire on some of his political enemies — namely, street protesters.
“Can’t you just shoot them?” Trump asked, regarding Black Lives Matter demonstrators and others who were protesting around the White House in June 2020, according to Esper. “Just shoot them in the legs or something?” (Trump has denied this account.)
This wasn’t just some idle thought: Esper wrote in his memoir that he had to legitimately talk Trump down from the idea. “The good news — this wasn’t a difficult decision,” Esper wrote. “The bad news — I had to figure out a way to walk Trump back without creating the mess I was trying to avoid.”
Two sources, including a former senior Trump White House aide, who’ve spoken to the former president regarding his ideas about troops shooting civilians tell Rolling Stone that when Trump talks about this, he’s eager to wound — not kill — potential targets. Sometimes, he’s been reminded, including by government officials, that shooting someone in the leg can easily kill them, a point he usually dismissed outright.
Last year, Trump publicly stated that another political foe — former chairman of the Joint Chiefs of Staff Mark Milley, who has denounced Trump as a “wannabe dictator” — deserves to be put to “DEATH.”
AFPI, for its part, has repeatedly argued that the president should designate Mexican drug cartels as terrorists and use military force to eliminate them.
The immunity case before the Supreme Court is part of Trump’s effort to delay and/or shut down Special Counsel Jack Smith’s prosecution of the former president over his attempts to overturn the 2020 presidential election. Trump and his legal team have argued he is entitled to “absolute immunity” from criminal prosecution for acts he committed as president, even after leaving office.
A federal appeals court rejected that argument in February, paving the way for the trial to start. But then the Supreme Court granted Trump a major victory — agreeing to consider his immunity claim. As a result, Trump likely won’t face trial in the federal election subversion case before Election Day in November, and that’s if it happens at all.
The Supreme Court will hear oral arguments in the case on April 25.
This week, several amicus briefs have been filed in the case arguing that justices should take note of a Trump lawyer’s contention that Trump’s right to presidential immunity would protect him from prosecution even if he were to order SEAL Team 6 to murder a political rival.
During arguments before the appeals court in January, Judge Florence Pan asked Trump lawyer John Sauer the following: “Could a president who ordered S.E.A.L. Team 6 to assassinate a political rival, and is not impeached, would he be subject to criminal prosecution?”
Sauer responded, “If he were impeached and convicted first… my answer is qualified yes, there is a political process that would have to occur first.”
The brief filed by AFPI attempts to head off this line of inquiry.
“A president of the United States enjoys broad authority to direct the military with very few limitations,” says the brief. “But one such limitation is that the president’s orders may not contravene the Constitution or the laws of the United States. Accordingly, the president has no authority to order the military to assassinate a political rival.”
The group says in its press release that the SEAL Team 6 question is “ludicrous and moot!”
The organization’s brief notably does not present the full question posed by Pan. “‘Could a President order SEAL Team Six to assassinate a political rival?’ That question was posed by a member of the panel at oral argument in the court below,” AFPI writes.
However, the question in the court case was whether the president could be prosecuted for this, not whether he could legally give such an order. Trump’s lawyer responded effectively, no — the commander in chief would first have to be impeached and convicted before he could be prosecuted, under Trump’s expansive vision of presidential immunity.
More than a dozen legal scholars and national security experts argued in a brief filed Monday that expanding presidential immunity the way Trump wants carries real risk: “Military and civilian officers might see presidential immunity as a constitutional blank check to issue any order, even orders requiring subordinates to commit crimes, including crimes that endanger national security,” they wrote. “Absolute or qualified immunity of a president could also be mixed with improper use of the pardon power to enable a corrupt president to use the military to accomplish otherwise unlawful objectives.”
Circling back to the Seal Team 6 hypothetical, they warned that “the team members would not need to fear the consequences of committing murder if the order to commit the murder were coupled with the promise of a pardon. Many other scenarios, including torture of prisoners and detainees, could be realized in which the pardon power is used by a legally unbound, immunized president to subvert the military’s allegiance to the Constitution, the rule of law, and military discipline.”
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