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Can a president order a rival’s assassination and get away with it?
It was an absurd hypothetical raised by an appeals court judge to point out the literally unbelievable and dangerous consequences of the legal argument from Donald Trump’s attorneys.
But it landed as a shocking warning from a Supreme Court justice in an earthquaking decision this week that shields Trump from accountability for crimes committed in office.
There has never been any legal precedent that would give a president such authority. But according to legal scholars, attorneys and the Supreme Court’s liberal justices, the decision has seemingly opened the door to question whether the commander in chief can commit legal murder.
“The whole assassination thing sounds far-fetched if you don’t view that hypothetical in light of what we just went through on January 6,” according to Donald Sherman, executive vice president and chief counsel with Citizens for Responsibility and Ethics in Washington, a nonpartisan nonprofit government watchdog group.
“This is not an academic exercise. This is no longer theoretical. This is no longer the providence of academics in ivory towers. We know what Trump has said. We know what this court has said. We know what Trump has done. We know that on January 6, Trump incited a mob to violently storm the Capitol, threatening the lives of members of Congress and the sitting vice president,” Sherman told The Independent.
“How much farther do you think we need to go to get to the scenario that the Supreme Court just said falls under this blanket immunity?”
The ruling from the court’s Republican-appointed majority grants the president absolute “immunity” from criminal prosecution for actions under their “official” duties. If a president relies on those “core” constitutional powers — say, activating the military to respond to a crisis — the president could ostensibly be shielded from prosecution for the killing of a political opponent.
The court’s decision does not make the underlying act legal. The military would not be immune from prosecution for carrying out a crime, and the military is not going to obey illegal orders. But a lawless president would be restrained only by their own administration and will power to test those constraints, according to legal experts.
In a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor warned that the court had created “a law-free zone around the president, upsetting the status quo that has existed since the founding.”
“Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune,” she wrote. “Organizes a military exchange for a pardon? Immune. Immune, immune, immune. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the president and the people he serves has shifted irrevocably.”
She didn’t invent that assassination plot scenario, of course.
It first came out of an appeals court hearing in January, when Judge Florence Pan pressed Trump’s attorney whether he believed that a president could order SEAL Team 6 to “assassinate a political rival” without being criminally prosecuted.
The fact that the Supreme Court’s majority did not specifically carve out such radical exemptions from that “absolute” immunity — and instead only mentioned actions that Trump himself is immune from — has alarmed legal analysts.
“If there’s ever a threat to democracy, Joe Biden can say he’s confronted by it,” according to John Dean, former White House counsel to Richard Nixon and a key witness in the Watergate scandal. “It’s an unclear guideline and it will be until some jurisprudence develops on it.”
If elected, Trump would return to the White House with an ideologically tested staff of loyalists and be armed with an authoritative blueprint for his regime. Two massive Supreme Court rulings that demolished the so-called administrative state this term have paved the way for him to centralize power, and a decision granting him legal immunity will undoubtedly empower him to act with impunity and grind his criminal cases to a halt.
The majority’s decision says flatly that “unofficial” acts can still be prosecuted. But it might end up being impossible for prosecutors to dig up evidence that proves a president was acting unofficially because the Supreme Court has largely made any communications or other materials inadmissible as evidence under its new threshold for immunity.
How can prosecutors even present a case if they can’t even use what a president says or does while in office as evidence against them?
“The president’s conversations with the secretary of defense, with the attorney general, can’t even come into evidence,” Sherman said. “This effectively means that whether we have a democracy is based solely on the whims and temperament of the person that holds the presidency.”
The ruling in Trump v United States fails to distinguish whether an “official” act clearly within the president’s power becomes “unofficial” if they commit a crime to do it, leaving a gaping hole in understanding the court’s new formula for reining in abuse.
“While the President may have the authority to decide to remove the Attorney General, for example,” Justice Jackson wrote, “the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.”
The frighteningly absurd legal arguments surrounding Trump’s actions — where analysts are now debating whether a president can legally kill someone — reflects something more sinister about the state of politics and the Supreme Court, according to legal experts.
As “preposterous as some of these possibilities seem to us right now, that we would be having this conversation right now seemed completely unthinkable a decade ago,” according to Georgia attorney Allegra Lawrence-Hardy, speaking to reporters on Monday.
“Whether it’s actually not illegal, or it is illegal but you just can’t be prosecuted for it, we used to live in a country where there was more respect for the law than contemplating realistic hypotheticals of the president assassinating his political opponents,” said Matthew Seligman, a fellow at the Center for Constitutional Law at Stanford Law School.
“Like, what are you talking about?” Sherman told The Independent. “The court doesn’t issue advisory opinions. It takes real cases and controversies. … God help us if the court ever has to deal with this issue, because the only way that happens is if there was an attempt.”
