Clearly illegal according to whom? If the Supreme Court were to rule that any official act by the president is legal, then any order he gives must be legal.
I particularly liked this line in the Court’s decision.
It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.
But but but he is not an officer!!! (so say some people…which I think is ridiculous)
Isn’t it possible for an order to be illegal, and for anyone following that order to be acting illegally, while the president alone has immunity from criminal liability for giving the order?
And he couldn’t be prosecuted for giving the illegal order which is illegal.
I don’t think “just following orders” would be a get out of jail free card.
I’m not a lawyer, and I wouldn’t be at all surprised if there are just those sorts of paradoxes in our legal system.
However, I could certainly see some merit in the argument that if president can’t be punished then any action he takes must be legal, and members of the military are required to follow legal orders.
This.
It’s not (I think Article 92 is failure to obey an order in the military):
The elements of Article 92 only apply if orders were issued lawfully. Orders or regulations that violate the Constitution, the laws of the United States, or lawful superior orders are considered unlawful. If an officer gave an order that they did not have the authority to give, that may also be unlawful. - SOURCE
I don’t think this follows. Just because someone is immune from the consequences of illegal actions doesn’t make those actions legal. Maybe this is a bad analogy, but a witness can be granted immunity in exchange for testimony, but the witness’s actions remain illegal. A president might be granted immunity (or not, we suspect) due to his or her position, but it wouldn’t follow that all actions by the president are now legal.
Can a pardon be a get out of jail free card?
De facto legal, if not de jure.
Suppose the Supreme Court did rule in favor of Trump’s appeal, that Trump is elected, and he then orders the military to kill someone. Someone in the chain of command refuses. Does anyone think that Trump wouldn’t prosecute (or at least replace) the officer who refused to follow his order?
Personally, I really hope the Court rules against Trump. I don’t think the president, any president, should have carte blanche to do anything they want without repurcussions. And I hope Seal Team Six would refuse to carry out a hit on orders from the president. It’s still an interesting, if exaggerated, example of the danger of presidential immunity.
Yes.
Note that “lawful” is baked right into the wording:
Maybe. If the person believes the president will deliver on the promise to pardon (I am unclear if a pardon can be handed out before the crime…I think President Ford pardoned Nixon before Nixon was charged but it was also after the alleged crime had been committed). But, murder is a state crime (usually) so you’d need to get the governor of that state to agree to a pardon.
I agree completely with your reasoning.
Or do it somewhere where only the feds have jurisdiction.
Do you seriously think that there are NO PEOPLE who would quickly obey a clearly illegal order? I mean, I’m sure that some would not obey, but…
Then the president pardons them. Done and dusted!
What if people in DC storm a building there and kill folks?
You give them too much credit. 2001 demonstrated that the Justices are willing to issue political rulings on openly partisan lines. And things have gone downhill since then.
So the Republican majority in the Supreme Court might declare that Republican Presidents are immune to all prosecution for any laws they break before, during, or after their term of office and Democratic Presidents are not.