Monte Erfourth
This week, the Supreme Court made a decision that changed the relationship between the military and civilian leadership. In particular, it highlighted a dubious role that SEAL Team Six might play in the increasingly bitter partisan political wars our nation continues to experience. The court found that the President would be immune from criminal prosecution while conducting any official act. In exploring the issue, the court asked if the President could order SEAL Team Six to assassinate a political rival and be criminally immune.[1]-[2] The findings reveal a stunning answer. Opening the door to this possibility should inspire everyone in uniform to ask questions. These leap to mind: “Would you, as the SEAL Team Six Commander, follow an unlawful order from the President knowing he is immune from prosecution and you are not? Particularly if that meant killing Americans on American soil and that you will likely be relieved for failure to follow a Presidential directive?” As of Monday, these are questions a military commander may face.
Trump v. the United States declared all official Presidential acts beyond criminal prosecution. In short, the court grants the Executive branch absolute immunity from acts deemed “core powers.” It leaves the question of what core powers are unsettled. Still, it adds to the confusion by explaining that the President also has peripheral powers that maintain the presumption of immunity. There is no standard or definition given to clear this up. The court further adds that no official acts can be used as evidence for personally committed crimes. The bottom line is that it shifts legal jeopardy off of the President and onto his staffers, cabinet heads, lesser officials, and uniformed personnel who might follow an unlawful order from the President. For the first time in the 248 years of our union, the President, an elected official, faces no criminal liability for issuing an unlawful order.
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