One line from Justice Sonia Sotomayor’s 58-page dissent in the Supreme Court’s opinion on presidential immunity has captured the attention of politicos everywhere: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” she warned of the majority ruling.
The idea of assassinating political rivals or eliminating public dissent by leveraging one of the most elite forces in the nation thrust the Pentagon into the hot seat: Could a president actually do this? And if they did, would the military comply?
“I mean, assassinate? … every legal adviser in the Special Operations chain of command would say, ‘If you do this, it’s murder,’” Geoffrey Corn, the director of Texas Tech University’s Center for Military Law and Policy, told NOTUS.
Corn participated in writing an amicus brief, alongside other former general officers and ambassadors, arguing that total immunity for official acts would throw the chain of command into chaos.
There are laws against military attacks on U.S. soil. The Posse Comitatus Act “forbids the use of the armed forces for civilian law enforcement purposes unless authorized by the Constitution or laws of the United States.” Now, legal experts are beginning to debate what an illegal order made by the president to the Department of Defense would mean.
The Pentagon is already fighting against the notion: Pentagon spokesperson Brig. Gen. Patrick Ryder was pressed on what now constitutes an “illegal order” during a press conference Tuesday. Ryder told reporters that “the benefit of legal counsel, training on ethics, standards” and other resources let commanders challenge any order, at any level.
“Let’s not conflate the Supreme Court deliberation and debate about presidential authorities with the Uniform Code of Military Justice and the access to legal counsel that military leaders have,” he said. According to Ryder, any commander or leader can get a legal assessment of what “is legal, ethical or moral and appropriate.”
“And that doesn’t change,” he said.
There are quite a few steps between a president making an order and an elite military force being deployed, and many of the involved lawyers are supposed to serve the best interests of the service members on the ground, not the president. Still, those in the armed services could still be caught in the crosshairs.
“The issue is not that Delta Force is going to be flying around the country, assassinating political opponents,” Corn said. “The issue is that you have incentivized abuse of power.”
While a president wouldn’t be able to fire officers in the military, they could relieve them from their position and rotate through the force until a lineup of loyalists are willing to carry out illegal actions.
“You have placed a really intolerable burden on the subordinates who would be called upon to implement that abuse of decision,” Corn continued.
Richard Painter, a former ethics lawyer in George W. Bush’s administration, who was on the same amicus brief as Corn, agreed.
“You can’t change it. He’s the commander in chief under the Constitution. So it really puts it on the generals, because it’s now a very difficult decision,” Painter said.
Title 10 of the U.S. Code requires the military to “obey the orders of the President,” but the military isn’t inherently bound to their Commander in Chief. Officers in the military swear an oath to “support and defend the Constitution,” not to the president.
Former Joint Chief of Staff Chairman Mark Milley highlighted that difference in his farewell speech last year. Milley served as the chairman for most of Trump’s presidency, and apologized for participating in Trump’s Lafayette Square photo op in 2020.
“We are unique among the world’s militaries,” he said. “We don’t take an oath to a country, we don’t take an oath to a tribe, we don’t take an oath to a religion, we don’t take an oath to a king, a queen, or a tyrant, or a dictator, and we don’t take an oath to a wannabe dictator.”
“We don’t take an oath to an individual. We take an oath to the Constitution.”
The Supreme Court’s opinion complicates all this. If the Senate refused to impeach the sitting president, there would be no repercussions on the office of the commander in chief, but there would still be for members of the military.
“Anyone who executed the order would be guilty of a crime. But the court’s language would make it very difficult to charge [the president] with a crime,” Painter said.
“You know the Nuremberg defense, ‘I just followed orders’? You don’t get that,” he told NOTUS. “It’s going to cause people to question the orders that they got from the White House. Now all I know is that an order is coming from the president and that he cannot be prosecuted.”
As legal experts and the Defense Department figure out what this would actually mean for the U.S. military, the political world has become consumed by the hypothetical.
“Under this ruling, a president can order the assassination or jailing of their political rival and be immune,” Rep. Adam Schiff said in a statement. The Nation published an article with the headline, “The President Can Now Assassinate You, Officially.”
Sen. Lindsey Graham first issued a statement that dismissed the notion: “The Supreme Court’s dissent in this case is foolish in every way, particularly Justice Sotomayor and Justice Jackson’s argument that this decision allows a president to assassinate their opponent,” it read.
His office, however, deleted the statement and issued another that avoided the subject: “Liberal Democrats just want an outcome and could care less about the rules and structure that protect our country. To suggest a president doesn’t have immunity when acting in an official capacity would be absurd. For these Democrats, when it comes to President Trump, Justice Kavanaugh, etc., the rules be damned and anything goes,” he posted. His office did not respond to a request for comment on why it deleted its previous statement.
Meanwhile, Trump’s own camp took a step into notably darker territory.
In response to a post on X from Democratic social media influencer Harry Sisson referencing Sotomayor’s dissent, Trump’s political adviser and Marine Corps veteran Chris LaCivita said: “Expect a visit…”
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John T. Seward is a NOTUS reporter and an Allbritton Journalism Institute fellow.