Would a president who orders one of the country’s most secretive and lethal military units to assassinate his political opponents be protected from criminal prosecution?
That’s the question at the heart of an alarming exchange during today’s make-or-break hearing to decide whether Donald Trump should be immune from criminal prosecution over his efforts to overturn the 2020 election. It arrived as all three judges in today’s panel expressed skepticism over the claim by Trump’s legal team that the ex-president is entitled to total immunity for his coup attempt—an argument that, if successful, would effectively end the special counsel’s election interference case before it goes to trial. But the response from Trump’s lawyer only appears to have underscored the deeply authoritarian risk posed by Trump’s reelection campaign. Here’s the exchange:
“Could a president order SEAL Team Six to assassinate a political rival? That’s an official act, an order to SEAL Team Six?” Judge Florence Pan asked.
Trump lawyer John Sauer dithered, invoking the founding fathers and what they would intend in such a situation.
“I asked you a yes or no question,” Pan interrupted. “Could a president who ordered SEAL Team Six to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?”
“My answer is qualified yes. There is a political process that would have to occur under the structure of our Constitution which would require impeachment and conviction by the Senate.”
Judge: "I asked you a yes or no question. Could a president who ordered S.E.A.L. Team 6 to assassinate a political rival (and is) not impeached, would he be subject to criminal prosecution?"
Trump attorney says "qualified yes — if he is impeached and convicted first." pic.twitter.com/OJvEbRDznj
— Manu Raju (@mkraju) January 9, 2024
It’s hard to overstate the terrifying absurdity of the argument. Then again, this is the man who used his executive power to pardon service members who had been accused of war crimes. Though today’s question was an extreme hypothetical—a device often used by judges to test the logic of a legal argument—the response by Trump’s team was entirely consistent with what the former president has been openly running on. Trump has long teased plans to lock up his political enemies. He did it again just yesterday, floating the idea of having Joe Biden indicted if he returns to the White House.
As for wild authoritarian plans to use the military to kill his opponents, perhaps that would fit into his one-day dictatorship.