Editor's Note: This column is co-authored by Lieutenant General (Ret) Keith Kellogg, Lieutenant General (Ret) Jerry Boykin, and Robert Wilkie.
On April 25, 2024, the United States Supreme Court will hear oral arguments in the case of Donald J. Trump v. United States, colloquially known as the “Trump immunity case.” If the prior arguments and the legal briefs, in this case, offer any insight into what kinds of questions we should expect, the issue of whether a president can order the military assassination of his political rival for personal gain will likely arise. Make no mistake, such a hypothetical question is ludicrous and misunderstands the relationship between the Commander in Chief and the military.
According to critics and pundits, you would believe that our brave service members are unthinking automatons. On the contrary, America’s military professionals know the difference between a verbal utterance and a lawful military order. Not everything a president says is carried out literally. And despite gaslighting from the legacy media and even a former political rival herself, Donald Trump would never issue such an order. As the 45th President of the United States, he never so much as hinted at this absurd notion.
Beyond the far Left’s fantasy and fearmongering, there lies the potential for a serious legal question about the limits of executive authority as it applies to the armed forces. Can the president order the military to assassinate an American citizen who has committed no crime? To answer that question, we must turn to President Trump’s predecessor, Barack Obama.
In 2011, the Obama Administration ordered the targeted killing of suspected terrorist Anwar al-Aulaqi, an American citizen living in Yemen. Tragically, the drone strike that killed al-Aulaqi also killed two other U.S. citizens, including a 16-year-old boy who was an innocent bystander. The boy’s grandfather sued the Obama Administration, who argued in defense that its actions were entirely lawful because officials determined Anwar al-Aulaqi posed a grave threat to national security. Notably, it has never been suggested that President Obama be prosecuted for the military actions that occurred under his command. And had he been, it is all but certain that President Obama and the legacy media would vehemently argue for the very immunity it now seeks to deny to President Trump.
The Obama Administration thus advanced the legal argument that U.S. citizens who have not been charged with any crimes may nevertheless be targeted and killed if it is determined that they pose a grave threat to national security. Under the Obama rule, a president who issued a military order to carry out such acts would be absolutely immune from prosecution because every serious lawyer would recognize the order to use lethal force was issued fully within the president’s constitutional authority.
Fortunately, our armed forces are very familiar with these arguments and issues. Indeed, our military commanders, intelligence analysts, attorneys, and even our snipers spend countless hours “wargaming” these types of scenarios and hypotheticals. There is almost no circumstance of which our military has not conceived in order to determine the legality of using lethal force. That is what it means to have a professional military. And absent any of the factors present in the al-Aulaqi killing, our military would never carry out an order to assassinate an American citizen, and especially not a presidential candidate.
The hallmark of a functioning military is good order and discipline. Accordingly, the military life is one of orders, rules, and regulations. Every service member, from four-star generals to privates, must understand the basic rule that only lawful orders are carried out. Indeed, the tragic lessons of Nuremberg and My Lai imbue our service members with the understanding that they are obligated to refuse to carry out unlawful orders. Thus, any presidential order to assassinate a political rival for purely personal gain would be met with blatant refusal.
Moreover, as made clear in a friend-of-the-court brief submitted in support of President Trump, he would never issue such an order. On the contrary, President Trump’s four years in office revealed a man who loves America, respects the Constitution, and admires our military. In stark contrast, President Trump’s political rivals are the ones who have shown that they will stop at nothing in order to engage in political and character assassination.
As the Supreme Court hears oral arguments on April 25, let us hope that none of the justices take the bait and ask the “SEAL Team Six question.” But even if one of them does, the answer is quite simple: If the order is issued under circumstances similar to the Obama rule, the president is absolutely immune. Absent those circumstances, no president would ever issue the order, and the military would never carry it out, so there is nothing for which immunity is needed.
Whether or not Americans agree with President Trump’s actions in office is a debate that is best decided at the ballot box. And that is precisely why it is necessary for the Supreme Court to rule that President Trump is immune in the first place so that he may, in fact, be on the ballot.
Lieutenant General (Ret) Keith Kellogg is a former National Security Advisor in the Trump Administration and was Chief of Staff of the National Security Council. Kellogg is a retired Army General Officer with numerous combat deployments. He commanded the Army’s 82d Airborne Division and is now Co-Chair of the Center for American Security at the America First Policy Institute.
Lieutenant General (Ret) Jerry Boykin was the Deputy Undersecretary of Defense for Intelligence (2002-07) during the George W. Bush Administration. Boykin’s decorated 36-year military career included 13 years as a commando in Delta Force, the United States Army’s elite special operations counter-terrorism unit.
Robert Wilkie served in the Trump administration as the 10th Secretary of Veterans Affairs and as Undersecretary of Defense for Personnel and Readiness. He serves as a distinguished fellow at the Center for American Security at the America First Policy Institute.