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My naive assumption is that ordering Seal Team 6 to assassinate a political rival is not an official nor constitutionally authorized power, and thus would be pr

My naive assumption is that ordering Seal Team 6 to assassinate a political rival is not an official nor constitutionally authorized power, and thus would be prosecutable.

saucetenuto 2y ago
Guess again! Roberts explicitly calls out orders to the military as covered by absolute immunity. EDIT: and motive is explicitly barred from review too.
- thih9 2y ago
  Do you have a source? I didn’t find this in the article, could you add a quote - or link if it’s from elsewhere?
  - ceejayoz 2y ago
    https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf Page 14 notes that the President's official responsibilities "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap- pointing public ministers and consuls, the Justices of this Court, and Officers of the United States." Page 17 states "We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority." Page 26 states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives."
    - saucetenuto 2y ago
      thank you, friend
    - Aunche 2y ago
      > Page 14 notes that the President's official responsibilities "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap- pointing public ministers and consuls, the Justices of this Court, and Officers of the United States." Right below that it clarifies > If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. Youngstown, 343 U. S., at 655 (Jackson, J., concurring). In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id., at 582–589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.
      - beej71 2y ago
        > If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. I suggest that courts might be _reluctant_ to make such a finding with Seal Team 6 visiting their homes at 3 AM. I pray when Trump is reelected he makes no such moves.
        BadHumans 2y ago
        He has already pledged revenge should he win reelection. Political opponents will be jailed and killed for his supporters entertainment.
        hanniabu 2y ago
        > I pray when Trump is reelected he makes no such moves. project 2025
      - ceejayoz 2y ago
        Seal Team Six is pretty clearly not a privately held steel mill; Truman was fairly clearly not the Commander in Chief of US Steel.
      - wbl 2y ago
        But Truman shouldn't have faced prosecution for that should he? It was after all done to ensure victory in Korea and he stopped after the court said no with apparent authority when he did it. This case goes too far and not far enough.
      - mywittyname 2y ago
        This demonstrates where the court is drawing the lines. Fascist dictatorships are fine, so long as they keep their mitts away from private industry. Of course, at this point, who is going to stop the President if he starts seizing companies? This ruling is like telling a hungry leopard, "you can eat anyone except for us." The hubris of this ruling is absurd. American's President Jinping won't be a Federalist.
      - notacoward 2y ago
        This court's citation of precedent in one decision is meaningless, since they've shown a lot of enthusiasm for overturning it as soon as it no longer suits their (or their patrons') interests. See also: Dobbs, Loper Bright.
    - thih9 2y ago
      Sounds like “nuke anything you want and walk away free”, hard to believe there would be no catch or failsafe. Absurd, to the point of being hilarious. Could a president use this (immunity and nukes) to become an absolute ruler? Edit: a failsafe is there, see sibling comment: https://news.ycombinator.com/item?id=40849357 https://news.ycombinator.com/item?id=40849357
- fragmede 2y ago
  How does that interact with the Posse Comitatus Act?
- fallingknife 2y ago
  In the military chain of command an order is only an order when it is a lawful order. The president does not have any power to issue an unlawful order. That would be outside of his constitutional powers and not an official act.
  - shadowgovt 2y ago
    Who gets to decide the lawfulness of the order, and what physical power does the Executive have at his disposal to bring to bear to tip their judgment?
    - anonfordays 2y ago
      >Who gets to decide the lawfulness of the order Congress, through impeachment.
      - shadowgovt 2y ago
        The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress. Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office. This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions. ... and that's before we broach the question of whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment. This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so.
        anonfordays 2y ago
        >The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress. Yes, and was impeached for that. >Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office. That's how checks and balances work. They may have made that conclusion, but the impeachment carried on anyway and failed to gain the 2/3rds majority. >This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions. It doesn't suggest that at all. >whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment. It's removal from office AND "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.[0]" They can still be found guilty for insurrection after impeachment. >This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so. That's not how it works because at the end of the day the President doesn't interpret the law, and isn't shielded from impeachment and justice through state/federal courts as I outlined above. This is literally the majority opinion. Similarly, just because a military officer interprets their actions are lawful doesn't make them so. [0] https://en.m.wikipedia.org/wiki/Impeachment_in_the_United_States https://en.m.wikipedia.org/wiki/Impeachment_in_the_United_St...
- rpdillon 2y ago
  An important point here is that there are both legal and illegal orders. Military personnel are instructed obey every legal order, and disobey every illegal order (at least I was). In the military, we have the UCMJ that allows us to prosecute those military personnel that issue illegal orders. The President is the Commander-in-Chief, but he is a civilian, so the UCMJ doesn't apply. I always thought he would be charged under criminal law in that case, but it seems that this ruling precludes that.
  - saucetenuto 2y ago
    This is true but I don't think it meaningfully checks the president, because the pardon power is also absolute and unreviewable, and does cover courts martial (as we saw in the Eddie Gallagher case). Military personnel are not required to follow illegal orders from the president, but if they do they won't face legal sanction.
ceejayoz 2y ago
The President is the Commander in Chief; issuing orders to the military is very much an official act. "But not for this! This would be clearly corrupt!" you may say, but the decision addresses that as well; the President's motive for the "official act" cannot be introduced as evidence! > In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
- fallingknife 2y ago
  It can't be used to distinguish between an official act and an unofficial act. That wouldn't make sense anyway. Motive can be used to defeat the presumptive immunity for an official act.
  - ruds 2y ago
    But the immunity is only presumptive for acts within the outer perimiter of the president's official responsibility. For core constitutional powers, like giving orders to the military, the immunity is absolute.
- goodluckchuck 2y ago
  Not intent, but the location and nature of the order. If it’s not in a war zone, not targeting an enemy combatant, etc. that’s not an order that falls within the scope of the core actions of a commander in chief.
  - ceejayoz 2y ago
    Neither is pressuring the Vice President not to certify the election, but they explicitly state it to be an official act. Page 31 of the ruling: > Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Pre- siding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a consti- tutional and statutory duty of the Vice President. > The indictment’s allega- tions that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the cer- tification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct. They're laying out an extremely permissive standard.
MOARDONGZPLZ 2y ago
Article II of the constitution specifically gives the POTUS the authority to command the armed forces. The limit is declaring war, which is vested in Congress. So it seems reasonable that commanding Seal Team 6 is specifically a constitutionally authorized power and within an official duty.
- InTheArena 2y ago
  commanding seal team 6 to assassinate a sitting head of state is a act of war, and only congress can declare war.
  - ceejayoz 2y ago
    We've made it very clear for decades that the President can commit acts of war without declaring it. Syria, Lybia, Iraq, Afghanistan, and dozens of other hotspots around the world.
    - InTheArena 2y ago
      so fix that.
    - Jsebast24 2y ago
      Add Ukraine.
      - ceejayoz 2y ago
        What act of war has the US directly committed against Russia within Ukraine?
  - gortok 2y ago
    That hasn't stopped any president in the last 60 years from using the Armed Forces to conduct a war -- or "police action" -- if you prefer.
    - InTheArena 2y ago
lenerdenator 2y ago
Maybe, maybe not. What does the judge who reviews the case think? That's literally the only thing preventing that scenario from playing out.
powersnail 2y ago
My naive assumption would be that giving that order must fall into the realm of official act. How can POTUS command the military, unless acting in the capacity of their Commander in Chief?

My naive assumption is that ordering Seal Team 6 to assassinate a political rival is not an official nor constitutionally authorized power, and thus would be prosecutable.

saucetenuto 2y ago

Guess again! Roberts explicitly calls out orders to the military as covered by absolute immunity. EDIT: and motive is explicitly barred from review too.

thih9 2y ago
Do you have a source? I didn’t find this in the article, could you add a quote - or link if it’s from elsewhere?
- ceejayoz 2y ago
  https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf Page 14 notes that the President's official responsibilities "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap- pointing public ministers and consuls, the Justices of this Court, and Officers of the United States." Page 17 states "We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority." Page 26 states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives."
  - saucetenuto 2y ago
    thank you, friend
  - Aunche 2y ago
    > Page 14 notes that the President's official responsibilities "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap- pointing public ministers and consuls, the Justices of this Court, and Officers of the United States." Right below that it clarifies > If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. Youngstown, 343 U. S., at 655 (Jackson, J., concurring). In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id., at 582–589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.
    - beej71 2y ago
      > If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. I suggest that courts might be _reluctant_ to make such a finding with Seal Team 6 visiting their homes at 3 AM. I pray when Trump is reelected he makes no such moves.
      - BadHumans 2y ago
        He has already pledged revenge should he win reelection. Political opponents will be jailed and killed for his supporters entertainment.
      - hanniabu 2y ago
        > I pray when Trump is reelected he makes no such moves. project 2025
    - ceejayoz 2y ago
      Seal Team Six is pretty clearly not a privately held steel mill; Truman was fairly clearly not the Commander in Chief of US Steel.
    - wbl 2y ago
      But Truman shouldn't have faced prosecution for that should he? It was after all done to ensure victory in Korea and he stopped after the court said no with apparent authority when he did it. This case goes too far and not far enough.
    - mywittyname 2y ago
      This demonstrates where the court is drawing the lines. Fascist dictatorships are fine, so long as they keep their mitts away from private industry. Of course, at this point, who is going to stop the President if he starts seizing companies? This ruling is like telling a hungry leopard, "you can eat anyone except for us." The hubris of this ruling is absurd. American's President Jinping won't be a Federalist.
    - notacoward 2y ago
      This court's citation of precedent in one decision is meaningless, since they've shown a lot of enthusiasm for overturning it as soon as it no longer suits their (or their patrons') interests. See also: Dobbs, Loper Bright.
  - thih9 2y ago
    Sounds like “nuke anything you want and walk away free”, hard to believe there would be no catch or failsafe. Absurd, to the point of being hilarious. Could a president use this (immunity and nukes) to become an absolute ruler? Edit: a failsafe is there, see sibling comment: https://news.ycombinator.com/item?id=40849357 https://news.ycombinator.com/item?id=40849357
fragmede 2y ago
How does that interact with the Posse Comitatus Act?
fallingknife 2y ago
In the military chain of command an order is only an order when it is a lawful order. The president does not have any power to issue an unlawful order. That would be outside of his constitutional powers and not an official act.
- shadowgovt 2y ago
  Who gets to decide the lawfulness of the order, and what physical power does the Executive have at his disposal to bring to bear to tip their judgment?
  - anonfordays 2y ago
    >Who gets to decide the lawfulness of the order Congress, through impeachment.
    - shadowgovt 2y ago
      The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress. Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office. This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions. ... and that's before we broach the question of whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment. This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so.
      - anonfordays 2y ago
        >The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress. Yes, and was impeached for that. >Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office. That's how checks and balances work. They may have made that conclusion, but the impeachment carried on anyway and failed to gain the 2/3rds majority. >This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions. It doesn't suggest that at all. >whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment. It's removal from office AND "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.[0]" They can still be found guilty for insurrection after impeachment. >This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so. That's not how it works because at the end of the day the President doesn't interpret the law, and isn't shielded from impeachment and justice through state/federal courts as I outlined above. This is literally the majority opinion. Similarly, just because a military officer interprets their actions are lawful doesn't make them so. [0] https://en.m.wikipedia.org/wiki/Impeachment_in_the_United_States https://en.m.wikipedia.org/wiki/Impeachment_in_the_United_St...
rpdillon 2y ago
An important point here is that there are both legal and illegal orders. Military personnel are instructed obey every legal order, and disobey every illegal order (at least I was). In the military, we have the UCMJ that allows us to prosecute those military personnel that issue illegal orders. The President is the Commander-in-Chief, but he is a civilian, so the UCMJ doesn't apply. I always thought he would be charged under criminal law in that case, but it seems that this ruling precludes that.
- saucetenuto 2y ago
  This is true but I don't think it meaningfully checks the president, because the pardon power is also absolute and unreviewable, and does cover courts martial (as we saw in the Eddie Gallagher case). Military personnel are not required to follow illegal orders from the president, but if they do they won't face legal sanction.

ceejayoz 2y ago

The President is the Commander in Chief; issuing orders to the military is very much an official act. "But not for this! This would be clearly corrupt!" you may say, but the decision addresses that as well; the President's motive for the "official act" cannot be introduced as evidence! > In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

fallingknife 2y ago
It can't be used to distinguish between an official act and an unofficial act. That wouldn't make sense anyway. Motive can be used to defeat the presumptive immunity for an official act.
- ruds 2y ago
  But the immunity is only presumptive for acts within the outer perimiter of the president's official responsibility. For core constitutional powers, like giving orders to the military, the immunity is absolute.
goodluckchuck 2y ago
Not intent, but the location and nature of the order. If it’s not in a war zone, not targeting an enemy combatant, etc. that’s not an order that falls within the scope of the core actions of a commander in chief.
- ceejayoz 2y ago
  Neither is pressuring the Vice President not to certify the election, but they explicitly state it to be an official act. Page 31 of the ruling: > Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Pre- siding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a consti- tutional and statutory duty of the Vice President. > The indictment’s allega- tions that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the cer- tification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct. They're laying out an extremely permissive standard.

MOARDONGZPLZ 2y ago

Article II of the constitution specifically gives the POTUS the authority to command the armed forces. The limit is declaring war, which is vested in Congress. So it seems reasonable that commanding Seal Team 6 is specifically a constitutionally authorized power and within an official duty.

InTheArena 2y ago
commanding seal team 6 to assassinate a sitting head of state is a act of war, and only congress can declare war.
- ceejayoz 2y ago
  We've made it very clear for decades that the President can commit acts of war without declaring it. Syria, Lybia, Iraq, Afghanistan, and dozens of other hotspots around the world.
  - InTheArena 2y ago
    so fix that.
  - Jsebast24 2y ago
    Add Ukraine.
    - ceejayoz 2y ago
      What act of war has the US directly committed against Russia within Ukraine?
- gortok 2y ago
  That hasn't stopped any president in the last 60 years from using the Armed Forces to conduct a war -- or "police action" -- if you prefer.
  - InTheArena 2y ago

lenerdenator 2y ago

Maybe, maybe not. What does the judge who reviews the case think? That's literally the only thing preventing that scenario from playing out.

powersnail 2y ago

My naive assumption would be that giving that order must fall into the realm of official act. How can POTUS command the military, unless acting in the capacity of their Commander in Chief?