Retired Military Officials Issue Grave Warning About Trump’s Claim To Absolute Immunity
A group of 19 retired four-star generals and admirals and former secretaries of the Army, Navy and Air Force filed a brief with the Supreme Court on Monday, saying former President Donald Trump’s claim of “absolute immunity” from criminal prosecution is “an assault” on the military’s “foundational commitments” to the rule of law and civilian control.
In a bid for the dismissal of federal charges against him for trying to overturn the 2020 election, Trump has claimed that presidents have “absolute immunity” from criminal prosecution for all acts taken while in office, unless they have been impeached and convicted for those acts. A federal appeals court rejected his argument on Feb. 6, but he appealed that decision to the Supreme Court, which will hear arguments on April 25.
The former military officials say in their brief that Trump’s assertion of absolute immunity would put members of the military in an “untenable position,” where they would need to choose between their duty to follow orders within the chain of command and their duty to disobey unlawful orders.
“Immunizing the Commander-in-Chief from criminal prosecution, as Petitioner argues for here, would fly in the face of that duty, creating the likelihood that service members will be placed in the impossible position of having to choose between following their Commander-in-Chief and obeying the laws enacted by Congress,” their brief states.
The former military officials who joined the brief to the court include Adm. Steve Abbott, Adm. Thad Allen, former Army Secretary Louis Caldera, Gen. George Casey, Gen. Peter Chiarelli, Gen. Carlton Fulford, Jr., Gen. Michael Hayden, former Air Force Secretary Deborah Lee James, Gen. John Jumper, Gen. Charles Krulak, Adm. Samuel Jones Locklear III, former Navy Secretary Ray Mabus, Gen. Robert Magnus, Gen. Craig McKinley, Adm. John Nathman, former Navy Secretary Sean O’Keefe, Adm. Bill Owens, Adm. Scott Swift and Gen. Charles Wald.
During arguments in the appeals court, Trump’s lawyers argued that, under the theory of absolute immunity, a president would be immune from prosecution even if he ordered the special operations Navy unit known as SEAL Team Six to assassinate his political opponents, unless that president was first impeached and convicted in the Senate for doing so.
Members of the military have a duty to obey orders through the chain of command, at the top of which the president sits. They also have a duty to disobey unlawful orders ― such as, say, assassinating a president’s political rivals, or enforcing domestic laws, like seizing voting machines to enforce election fraud statutes, as a drafted but never-issued Trump executive order would have called for. If the president were placed above the law, members of the military and their civilian leadership would be forced to choose which duty to obey.
“Some political appointees might prioritize their loyalty to the President above their oaths and transmit the orders to violate the law, thus passing on to senior military leaders the dilemma of whether to obey the President or the law,” Monday’s brief states. “Alternatively, should the President’s civilian appointees and senior military leaders resign in protest or be summarily fired for refusing to obey the President’s unlawful orders, the Department of Defense would be without the civilian and military leadership that is indispensable to safeguarding our national security.”
Indeed, a partial version of the latter scenario unfolded in 2020 after Trump fired Defense Secretary Mark Esper for publicly stating that the military would play no role in Trump’s efforts to overturn his election loss. Multiple top-ranking policy officials resigned in protest over Esper’s firing, while top military brass, including Joint Chiefs of Staff chairman Mark Milley, discussed resigning if Trump should order them to deploy the military to execute a coup to allow him to stay in power.
The brief from the former military officials takes some time to respond to another brief filed with the Supreme Court by a separate group of three former military officials ― former Trump administration Secretary of Veterans Affairs Robert Wilkie, retired Lt. Gen. Keith Kellogg and retired Lt. Gen. Jerry Boykin ― who suggested that the appeals court ruling rejecting Trump’s immunity claim “should be vacated or reversed” if it relied on the SEAL Team Six scenario, because of the military’s duty to disobey unlawful orders.
Those three former officials “do not have an adequate answer to what happens when the President exceeds the bounds of his authority and issues unlawful orders he intends to be followed,” the brief by the 19 former military officials states.
Instead, the three former officials only “offer... the unfounded prediction that military officers and officials would defy presidential orders to commit crimes” ― but the Constitution does not provide “that predicted defiance” as a “backstop against criminal behavior by a President,” Monday’s brief states.
“It is no response that the President lacks lawful authority to undertake criminal acts, such as ordering the assassination of a political rival,” the brief says. “That was never in doubt. The issue in this case is what happens when the President exceeds the bounds of his lawful authority ― and the Court should ensure that our legal system continues to disincentivize him from doing so in the first place.”
