In bringing up the hypothetical of whether a president would be protected by immunity if he used the military to assassinate an individual, Justice Samuel Alito noted that he did not want to slander Seal Team Six in the theoretical situation.
The hypothetical assassination scenario has been brought up throughout this case, including in the DC Circuit Court of Appeals. Trump’s attorney, John Sauer, has continued to say a president could be protected from prosecution for such an act.
US Circuit Judge Florence Pan cited it earlier this year testing the boundaries of Trump’s argument.
“Could a president order SEAL Team 6 to assassinate a political rival?” Pan asked.
Sauer at the time acknowledged that under the sweeping immunity claims his client has put forth, prosecution for that crime likely would not happen.
But the exchange prompted a series of amici briefs at the Supreme Court debating the relationship between the civilian leader of the US military and the service members who are usually bound to follow orders from their commander-in-chief. Some of those briefs note that members of the military are barred from following an illegal order.
Others told the high court that the reality is more complicated.
“Receiving an unlawful order thus places service members — already pushed to extremes by virtue of their vocation — in a nearly impossible position,” according to one brief filed by several retired four-star admirals and generals.
“On the one hand, disobeying a lawful order is punishable by court-martial and contrary to everything service members have been trained to do,” the generals and admirals argued. “On the other hand, the duty to disobey imposes on them the obligation not to rationalize obedience of an unlawful order simply out of deference to one’s superiors.”
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