Trump’s Presidential-Immunity Theory Is a Threat to the Chain of Command

Next Thursday, former President Donald Trump’s lawyers will argue before the U.S. Supreme Court that he is immune to all criminal charges against him arising from acts he committed while president. It is no exaggeration to say that this argument—that a president is permanently immune to criminal prosecution for any crimes committed in his official capacity—is the most dangerous assertion any official or former official has ever made in a U.S. courtroom.

Should this argument be adopted by the Court, a president would have license to make use of the U.S. military to subvert democracy in multiple ways, for example by endeavoring to remain in power past the end of his legitimate term, or attempting to avoid accountability for his past criminal activities, and the country would have little to no recourse. A less appreciated danger, but one that would present itself with greater regularity, is the weakening of the military chain of command, and with it civilian control of the U.S. armed forces. As we, along with 13 other national-security professionals, including high-ranking retired military officers, argue in an amicus brief we filed in this case, holding everyone in the chain of command to the same principles of accountability under the criminal laws of the United States is essential for ensuring the legality of military orders, and for providing all levels of the chain of command with reassurance of that legality. This includes the president.

[David A. Graham: Trump loses his presidential immunity claim]

Some people may take comfort in the fact that officers and ordinary enlisted alike swear an oath to abide by the Constitution, and furthermore that the duty to follow orders extends only as far as the lawfulness of the orders received. This means that everyone in the chain of command who receives a patently unlawful order has a duty to disobey. Consistent with this principle,  “following orders” is no defense to a charge of illegality when the recipient of the order knows or has reason to know that the order was illegal. The infamous “Nuremberg defense” asserted by Nazi military officers in war-crimes trials after World War II was rightly rejected by that tribunal.

But in practice, a presidential order has strong gravitational pull. Under normal circumstances, then, when the commander in chief issues an order, there is a presumption of its legality. Wouldn’t a president’s advisers stop him from issuing an illegal order for his own good, if not for the good of the country? If the president is immune to criminal prosecution, however, his lawyers may not be quite so concerned about the order’s legality, and his subordinates will be left to determine for themselves whether following the order places them in legal jeopardy. This may erode confidence in the chain of command and would create the potential for disparate interpretations of the duty to obey orders, thereby risking military discipline and regular functioning. In this way, immunity for criminal acts committed in the president’s official capacity would undermine military obedience to civil authority, the foundation of our civil-military relations since the inception of the republic.

Nowhere is this clearer than in the case of a putative order to commit war crimes. Imagine a president who orders U.S. troops to engage in a massacre such as the one that famously occurred in My Lai, Vietnam, in 1968. In such a situation, every service member must assess for themselves the legality of an order and thus the weight to accord the general duty to obey orders. Where the order is patently illegal, as was the case with My Lai, no service member could carry out such a command without risking major sanctions following trial by court-martial, as is made clear by the U.S. Manual for Courts-Martial. In less dramatic cases, the order’s legal status may be unclear, and then failure to obey a lawful order may incur criminal charges and proceedings triable by court-martial, unless the recipient of the order has a high degree of knowledge that the order is illegal. If he merely thinks the order is illegal but the order is in fact legal, he is virtually certain to be convicted for refusal to obey.    

Against this backdrop, presidential immunity for criminal use of commander-in-chief authority is untenable. Although the duty of obedience on the part of subordinates does not extend to patently illegal orders, an order issued by the president himself would exert considerable pressure on service members. If everyone in the chain of command except the president can be prosecuted both for failure to obey a legal order and for obeying an illegal order, and if presidential orders cannot be presumed to be legal, military service would be fraught with peril. Placing the men and women who put their lives at risk to protect the Constitution—as every service member swears to do—in such moral and legal jeopardy would be both dangerous and profoundly unfair to our troops.

President Trump gives no answer to such concerns in the brief his attorneys filed in this case, preferring to focus on the risk of unfair prosecution of presidents by political rivals. He cites numerous instances, from allegations of corruption against John Quincy Adams to Franklin Delano Roosevelt’s imprisonment of Japanese Americans during World War II to Barack Obama’s targeted killing of Americans overseas. “In each such case,” Trump’s lawyers argue, “those opponents later came to power with ample incentive to charge him. But no former President was ever prosecuted for official acts—until 2023.” But, as our brief maintains, there is a distinction between political rhetoric based on morally or politically controversial acts and actual, prosecutable offenses. From the fact that prosecutors and their associated grand juries may have difficult decisions to make, it hardly follows that there are no actual cases of presidential crime or that prosecution in such cases would necessarily be politically motivated. But the downstream effects of a total lack of accountability for all presidential crime, whether in war or elsewhere, cannot be tolerated.

The Supreme Court should unequivocally reject Trump’s proposed doctrine of presidential immunity and leave no doubt in the minds of Donald Trump, the public, and all occupants of the Oval Office that the president will be held to the four corners of the law in both his personal and official capacities. And this is because the president, like all U.S. officials as well as ordinary citizens, is not above the law.