Did the Supreme Court really just give U.S. presidents the power to assassinate opponents?

All the focus on Joe Biden’s political future this week overshadowed one of the more jaw-dropping allegations in American political history.

Did the U.S. Supreme Court really just give presidents the right to murder their political opponents?

Liberal justices argue it did.

In their dissent in the historic presidential immunity case, Trump v. United States, the court’s minority claimed the decision did more — much more — than just help the former U.S. president potentially escape his most serious legal predicament. It imperilled American democracy, they argued. And President Joe Biden has taken up that theme, warning that America’s nearly two-and-a-half-century-old republic is under assault.

“In every use of official power, the president is now a king above the law,” Justice Sonia Sotomayor wrote in her dissent, signed by two colleagues.

“[Let’s say he] orders the Navy’s Seal Team Six to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon?

“Immune. Immune, immune, immune.”

The court’s majority opinion dismissed her writing as hyperbolic. But it never specifically denied the charge; in fact, the majority ruling was strangely muted on such an explosive allegation, one which calls into question the future of the republic.

Legal analysts seem split. Some, but not all, accuse Sotomayor of exaggerating. The outlet Politico quotes constitutional lawyers arguing the ruling did, in fact, potentially give the president dictatorial powers.

Here’s what the decision clearly does: It makes the president immune from prosecution for actions where he’s obviously exercising his official role. He is not immune for acts unrelated to his role. But in ambiguous cases, he’s presumed to be immune, and courts must decide on a case-by-case basis. But the court was light on specific examples.

The Supreme Court then punted the issue back to a trial court, further delaying Trump’s criminal trial for trying to overturn the results of the 2020 election; it also weakened that case by forbidding the use of some evidence.

So what to believe here? Did the court actually provide a license to kill, in other words, allowing a violent dictatorship?

Yes, if you read it at face value

“Strictly read, on its face, is this what [the opinion] would permit? The answer is yes,” said Harold Hongju Koh, a Yale Law School professor who teaches national-security law and was legal adviser to the State Department during the Obama years.

“The way this opinion is worded, it’s broad enough to cover the most outrageous set of facts. So Justice Sotomayor was not being hyperbolic.”

But he adds a massive caveat: That the majority justices didn’t intend to address that issue. Instead, he said, they made clear they see this as their first presidential immunity case among potentially several, and they wanted to say as little as possible right now about other future scenarios.

In his view, an especially troubling part of the ruling sounded less dramatic and got less attention: The part forbidding the use of certain evidence against the president.

For example, the court forbids using Trump’s conversations with his acting attorney general about the 2020 election. This would seem to chop out part of the evidence against Trump in the indictment that accuses him of trying to steal the last election, as it refers to such conversations dozens of times.

That’s a read shared by Jon Michaels, a professor of constitutional law at UCLA, who focuses on presidential power, national security and administrative law.

Chief Justice John Roberts may have tried pooh-poohing Sotomayor’s nightmare scenario, describing her writing as unnecessarily doomful, and disproportionate to the substance of the ruling. But Michaels says it’s his own fault.

He says the substance of the court opinion is problematically vague, and it’s even more troubling given the real-life personality at the centre of it who has repeatedly shown contempt for the law, including after the 2020 election.

“I believe the dissent is correct in characterizing the majority opinion in elevating the president above the law,” Michaels said.

“We’re not in hypothetical land. We’re dealing with Trump, who prides himself on pushing the bounds that constrain the rest of us.”

Another constitutional law professor told CBC’s Front Burner podcast that she shares this view, when asked about Sotomayor’s comments that the court has elevated presidents into kings above the law.

“I think they’re very fair and very concerning,” said University of Michigan professor Leah Litman.

Counterpoint: No way the court meant that

However, even some scholars who call Sotomayor’s interpretation fair, based on the strict wording of the court ruling, say it’s obviously not what the court meant.

The court didn’t provide an exhaustive list of potential scenarios, such as presidents murdering and bribing people, because this ruling was intended as the first of several eventual immunity cases, Koh says, and the full parameters of what’s allowed will be defined over time.

What the court did do was offer some specific examples from Trump’s election-overturning case. The Washington, D.C., court deciding that case must now consider these instructions before any trial.

“Were this [murder] case actually to arise, it could not possibly be the case that the president would be immune for ordering Seal Team Six to shoot a political rival,” Koh said.

“If we got to that point, and God help us if we did, you would hope it would be foreclosed.”

He said a dictatorial president could someday try claiming he was lawfully exercising his commander-in-chief power in issuing orders to kill, but really: “It’s just murder, or assassination.”

The very idea that the Supreme Court might ever allow this is preposterous, said Thomas Lee, a law professor at Fordham University in New York.

Sotomayor was wrong to even bring it up, said Lee, who is also former Pentagon lawyer and a U.S. naval cryptology officer. He noted there were more useful criticisms of the decision, which he agreed went too far.

He liked Amy Coney Barrett’s partial dissent. The more conservative justice distanced herself from some parts of the ruling, arguing it defined immunity too broadly, and erred in keeping official conversations from juries and courts.

Lee called Sotomayor’s claim an “unhelpful hypothetical.”

“There is no plausible argument that the president can use his commander-in-chief powers to use military forces to assassinate a political rival within the United States,” he said.

He says there’s nothing in the Constitution’s list of presidential powers under Article Two that authorizes using the military, at home, against a political rival.

Plus, he said, even if a president tried to do such a thing, soldiers have a right and responsibility to refuse to follow an unlawful order.

Elena Chachko, a Berkeley Law professor whose focus includes administrative and national-security law, says it’s clear that the decision enhances presidential power, and could give an unscrupulous president wide scope for corrupt behaviour.

But killing a rival? No.

“The dissent exaggerates when it says that the court’s decision makes the president ‘a king above the law,’ [and empowers him] ‘to violate federal criminal law,’ ” she said.

So what is the court trying to do?

One thing the court unquestionably did was delay, and potentially fatally undermine, what is arguably the most politically serious case against Trump involving his actions in the lead-up to the Jan. 6, 2021 attack on the U.S. Capitol.

It’s also clear, these observers say, that the court wanted to avoid addressing a fuller range of hypothetical future cases involving presidential acts.

To illustrate his point, Koh summarizes the disagreement between the two sides in more colloquial language. He notes that Roberts seems to be saying that for some acts it’s clear a president can’t be prosecuted, for those where it’s not clear the courts will have to decide, and for others you obviously can prosecute a president — but this decision gives no examples of the latter.

In her dissent, Koh says, Sotomayor was pointing this out. “Like, ‘Are you kidding me? If ordering Seal Team Six to kill your political rival would not be immune, you should just say so right now, right here,’ and he doesn’t do it,” he said.

“Instead, he just sort of dismisses it as hysteria or emotions, which I thought was, you know, the most arrogant response you could imagine.”

Then again, Michaels said, Roberts’s caustic quote about Sotomayor peddling unrealistic scare-scenarios might be comforting to some, as he’s implicitly brushing off her Seal Team Six possibility.

In Lee’s view, the chief justice draws some blame for the confusion. While Roberts clearly wanted to step aside and let lower courts deal with any specific future cases, his vagueness has resulted in eye-popping takeaways.

“Roberts didn’t do himself any favours by being so vague,” Lee said.

 

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