22 MONTEREY COUNTY WEEKLY july 4-10, 2024 www.montereycountynow.com exacerbated if the president were unrestrained in the orders he could issue and could therefore violate the law with impunity. Failure to obey a lawful order for any individual in the military chain of command whose duty it is to obey such order is a serious offense, subject to prosecution by general courts martial. Any soldier receiving illegal orders has a duty to refuse to carry out those orders. It is presumed that orders are lawful, and a defendant charged with disobeying orders bears the burden of establishing illegality. Any subordinate inclined to disobey an order issued by the president assumes a grave risk of prosecution with a heavy burden to establish the order was in fact illegal. In the case of an illegal order, the mere fact that it was issued by a president would guarantee uncertainty as to its legality, with the result that obedience could provide a complete defense to any criminal prosecution arising therefrom. This sharply reduces the likelihood that a subordinate officer will refuse to obey a president’s orders, even though immunity from prosecution increases the incentive of the president to issue illegal orders. Military personnel who instinctively rely on the validity of an order that is passed through the chain of command can nonetheless be prosecuted for obeying the order if it turns out to be illegal. This suggests that presidential immunity from criminal prosecution would create multiple problems for the command function and good order and discipline of the armed services. First, if subordinates in the chain of command are aware that the Commander-in-Chief is immune from prosecution, some may assume this renders any order legal for purposes of their duty to obey. Others may reach a different conclusion. This could easily result in chaos, with different commanders in the same chain reaching disparate conclusions. Second, the mere knowledge that the president enjoys immunity may lead subordinates to question their duty to obey presidential orders, something that almost never normally occurs. Third, because petitioner emphasizes that the immunity he asserts would in no way protect subordinates who commit crimes in obedience to presidential orders, they may fear liability for executing illegal orders, thus causing hesitation to execute other lawful commands of the president and civilian officers. Often there is little time to assess whether an order is legal; a subordinate must be able to rely on the legality of all presidential orders, yet this reliance would be unavailable were petitioner’s theory to hold sway. Worry within the command chain about unconstrained presidential crime could thus have devastating consequences for discipline within the ranks. Finally, there are always those who will follow presidential orders even if they believe doing so will violate federal criminal law. Illegality from the top does not come with a label marking it as such. 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. 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. For example, in the SEAL Team Six assassination scenario, 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. Petitioner suggests that in the absence of immunity for official acts, any number of presidents throughout history might have been prosecuted for war crimes, based on political accusations that they were committing “crimes.” However, being “prosecuted” is not the same as being convicted. Even setting aside the exaggerated nature of petitioner’s argument, a conviction for war crimes requires both the judgment of a grand jury that a crime was committed, denial of a motion to dismiss by a judge, and a unanimous finding of guilt beyond a reasonable doubt by a jury. But if these prosecutorial burdens are satisfied, there is no plausible reason a president should be immune from the criminal consequences of ordering a war crime. Examples cited by petitioner are inherently misleading, as none involve orders that were so clearly unlawful as to support criminal prosecution. He points to President Franklin Delano Roosevelt’s relocation and detention of Japanese Americans during World War II; President Clinton’s launching of military strikes in the Middle East on the eve of critical developments in the scandal involving his affair with a White House intern; the George W. Bush Administration providing what was subsequently understood to be false information to Congress about weapons of mass destruction in Iraq; and President Barack Obama’s targeted killing of U.S. citizens abroad based on a determination they were enemy belligerent operatives, among others. Petitioner points out, “In all of these instances, the president’s political opponents routinely accuse him, and currently accuse President Joe Biden, of ‘criminal’ behavior in his official acts. In each such case, those opponents later came to power with ample incentive to charge him. But no former president was ever prosecuted for official acts—until 2023.” For this reason, petitioner is convinced that criminal prosecution of a president of any sort “presents a mortal threat to the presidency’s independence.” Yet in trotting out this parade of horribles, petitioner completely ignores the fact that there is a difference between acts that are actually criminal and acts that are merely said to be criminal by political adversaries. None of these decisions resulted in criminal indictment or prosecution for the obvious reason that there was a substantial gap between political hyperbole and evidence indicating violation of federal criminal law. Moreover, it is not necessary for the president to have blanket immunity to be protected from criminal prosecution for acts ordered, solicited, or committed in times of war. Nor would such blanket immunity be desirable. The My Lai massacre in which U.S. troops killed as many as 500 unarmed villagers in Vietnam in 1968 is a reminder that U.S. troops have committed atrocities in warfare and that criminal liability is a critical part of holding anyone accountable who would engage in such acts. Any president who ordered or encouraged a massacre of civilians would rightly be subject to prosecution for his role in such a heinous act. We urge this court to strengthen, not weaken, the legal and moral authority of the president, particularly as Commanderin-Chief of the armed forces, by holding the president, like every other American, accountable under the criminal laws of the United States. We urge this Court to reject petitioner’s absolute and qualified immunity theories which would be exceedingly dangerous for both our constitutional framework and for U.S. national security. Claire Finkelstein is a professor of law and of philosophy at the University of Pennsylvania. Richard Painter is a professor of corporate law at the University of Minnesota. The nine Supreme Court justices heard oral arguments in Donald Trump’s immunity case in April and issued their 6-3 ruling, along partisan lines, on July 1. The conservativeleaning majority includes three justices Trump appointed. It is the law, not the president, that is supreme. Collection of the Supreme Court of the United States
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