Hypothetical SEAL Team 6 political assassination resurfaces in Supreme Court presidential immunity dissent
Could a commander in chief order SEAL Team 6 to assassinate a political rival and not face criminal prosecution? That is the provocative hypothetical raised by two Supreme Court justices in their dissents on the high court's ruling regarding former President Donald Trump's immunity case.
The Supreme Court on Monday said former presidents are entitled to some protections for "official" acts, though said there is no immunity for "unofficial" acts -- rejecting Trump's sweeping claim of "absolute" immunity from criminal prosecution in his federal election subversion case.
The blockbuster decision split the court along ideological lines. The 6-3 opinion was delivered by Chief Justice John Roberts, with Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissenting.
In their dissents, both Sotomayor and Jackson addressed the question of whether a president would have immunity from criminal prosecution for acts of murder -- including ordering the assassination of a political rival.
"This new official-acts immunity now 'lies about like a loaded weapon' for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation," Sotomayor wrote in her dissent.
When the president "uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution," she continued. "Orders the Navy's Seal Team 6 to assassinate a political rival? Immune."
In her dissent, Jackson wrote that a hypothetical president "who admits to having ordered the assassinations of his political rivals or critics" would have a "fair shot at getting immunity" under this new "accountability model."
"In the end, then, under the majority's new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends," she wrote.
Roberts pushed back against what he called "extreme hypotheticals" in the two justices' dissents.
"The dissents' positions in the end boil down to ignoring the Constitution's separation of powers and the Court's precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President 'feels empowered to violate federal criminal law,'" he wrote.
"The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next," he continued.
Without immunity, he warned that prosecutions of former presidents who were criticized for failing to enforce a federal drug, gun, immigration or environmental law, for example, "could quickly become routine."
"The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid," he wrote. "Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors."
Roberts wrote that accounting for the president's "sweeping powers and duties" as a branch of government "does not place him above the law; it preserves the basic structure of the Constitution from which that law derives."
ABC News Supreme Court contributor Kate Shaw said on ABC News Live Monday that she agreed with the dissenting opinion that ordering the hypothetical assassination could be considered immune from criminal prosecution.
"In terms of the application of this immunity to very extreme scenarios like ordering an assassination, I'm not sure the majority successfully explains why this rule would not shield that kind of conduct if it's engaged in, you know, in an official capacity, even if it's wildly wrong and dangerous and destructive," she said. "If that conduct is done in official capacity, I think the dissent is right on this opinion's own logic. It would be immune, and that is a genuinely chilling implication of this case."
The SEAL Team 6 assassination hypothetical was raised during oral arguments on the case in April.
Sotomayor raised it first while questioning Trump attorney John Sauer. She pointed back to an earlier exchange Sauer had in a lower court proceeding.
"I'm going to give you a chance to say ... if you stay by it: If the president decides that his rival is a corrupt person and he orders the military, or orders someone, to assassinate him -- is that within his official acts for which he can get immunity?" she asked during oral arguments.
"It would depend on the hypothetical," Sauer answered. "We could see that could well be an official act."
During the arguments, Justice Samuel Alito referred back to a president's hypothetical use of the military as elite assassins as he and Sotomayor split on whether "plausibleness" was a useful standard for scrutiny versus "reasonable."
"One might argue that it isn't plausibly legal to order SEAL Team 6 -- and I don't want to slander SEAL Team 6 because they're -- no, seriously -- they're honorable, they're honorable officers and they are bound by the Uniform Code of Military Justice not to obey unlawful orders," Alito said. "But ... I think one could say it's not plausible that is legal, that that action would be legal."
To Sauer, he said, "I'm sure you've thought of lots of hypotheticals where a president could say, 'I'm using an official power,' and yet the power uses it in an absolutely outrageous manner."
ABC News' Alexandra Hutzler contributed to this report.
