After the U.S. Supreme Court’s ruling in former President Donald Trump’s 2020 election interference case—which states that former presidents have absolute immunity from prosecution for official acts that fall within their “exclusive sphere of constitutional authority” and are presumptively entitled to immunity for all official acts—was announced on July 1, Fordham Law Professor Cheryl Bader spoke with POLITICO about how “nightmare scenarios” Justice Sonia Sotomayor outlined in her dissent are not implausible readings of the new ruling.
The crux of the issue, legal scholars said, is that the decision granted total immunity for any actions a president takes using the “core powers” that the Constitution bestows on the office. One such power is the authority to command the military.
“The language of the Supreme Court’s decision seems to suggest that because this is a core function of the president, that there is absolute immunity from criminal prosecution,” said Cheryl Bader, a criminal law professor at Fordham Law School and a former federal prosecutor. “If [presumptive GOP presidential nominee Donald] Trump, as commander in chief, ordered his troops to assassinate somebody or stage a coup, that would seem to fall within the absolute immunity provision of the court’s decision.”
The hypothetical about a president deploying the Navy SEALs to assassinate a political opponent has come up before — including during a lower-court hearing on Trump’s immunity litigation and during the Supreme Court’s own oral arguments in the case. It was raised as an absurdity to illustrate that the most sweeping version of Trump’s immunity theory could not possibly be right. In fact, when Justice Samuel Alito broached the scenario during oral arguments, he drew laughter in the courtroom.