These days, I blog mostly about books and publishing. But I'm still a lawyer, though quasi-retired, and I have an abiding interest in constitutional law. Combine that interest with an author's habit of asking "what if" -- especially an author, sometimes, of science fiction -- and you get this attempt to examine Justice Sotomayor's dissent in the recent decision on presidential immunity.
Justice Sotomayor opined that under the majority decision, a president could order Seal Time 6 to assassinate a political rival and be forever immune from prosecution for so doing. Various legal commentators have dismissed this assertion with words like "preposterous." It would certainly be more comfortable to do so. But I believe her hypothetical deserves more serious examination.
First, a brief recap of a few key points in the majority opinion. According to the Justices in the majority, the basic structure of the constitution assumes an energetic president, unrestrained by fears of what his political opponents may do the moment he leaves office. Accordingly, when he exercises his "core constitutional powers" -- that is, "within his exclusive sphere of constitutional authority" -- he is absolutely immune from later prosecution for doing so. And when he acts "within the outer perimeter of his official responsibility, he has "at least presumptive immunity." The former category apparently includes authority that is typically delegated to various people within the president's administration, or else the majority would not have stated several times that authority exclusive to "the Executive Branch" is covered by this absolute immunity.
The basis for the hypothetical is the president's status as Commander in Chief. The president can give orders to military personnel. Arguably, this is authority accorded exclusively to the president, or at least those within the Executive Branch -- if the various military personnel who give orders to those lower in the chain of command may be so defined. If, by giving orders to members of the military, the president is acting "within his exclusive sphere of constitutional authority," then he would (gulp) have not merely presumptive, but absolute immunity for those orders, no matter their motivation. If this analysis is correct, even issuing a presidential order that is "illegal" under military law could not be criminally prosecuted.
If this hypothetical order somehow does not fall within the "exclusive" presidential sphere, but is instead an official act "within the outer perimeter" of presidential responsibilities, then it may be possible to rebut the presumption of immunity -- though the Court didn't actually rule that immunity in this context is only presumptive, saying rather that it didn't need to decide that question given the state of the record. If, in fact, official acts of this kind are only presumptively immune, how may that presumption be rebutted? The majority indicates that the prosecution may attempt to prove that the conduct in question "does not pose dangers of intrusion on the authority and functions of the Executive Branch" (internal quotations omitted).
What about motive? Where would a president's reason for arranging a military assassination fit in? It may not, the Court held, be used to distinguish "official" from "unofficial" conduct. "Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect." However, it may be inferred that once conduct is conceded to be official, motive may be called upon to rebut the presumption of immunity, if in fact later rulings confirm that such rebuttal is allowed.
So where does all this analysis leave Justice Sotomayor's hypothetical? It seems to me that should a president indulge in political assassination by means of the military, any future prosecutor would need to argue first -- and I don't, at first glance, quite see how -- that giving orders to military personnel to kill someone is not within his core constitutional powers. If the prosecutor prevails on that point, and if no future Supreme Court opinion has eliminated the possibility of rebutting the presumption of immunity for official acts outside that category, then we may all relax, trusting that the motive will constitute a sufficient rebuttal. But at this early stage of absorbing the decision, as we wait to see how it is applied in the future, we can hardly fault the Justice for treating the outcome as something less than guaranteed.
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