The media has spread a ton of misinformation and lies this week about an exchange between President Donald Trump’s lawyers and a federal Appeals court judge. You probably saw some of the coverage that involved a hypothetical question about a president ordering Seal Team Six to assassinate a political rival. The real question is whether presidents have “absolute immunity” for official actions that they carry out as part of their duties. The answer, of course, is yes—although Trump’s lawyers could have explained it better and the media totally lied about.
Judge Florence Pan came in with a loaded series of gotcha questions prepared before the hearing. She was expecting pats on the head from the media for being such a Smart Girl. Trump’s lawyers are arguing that he has absolute immunity from prosecution for all the actions that he took in relation to the stolen 2020 election.
Since Trump knew the election had been stolen, he had a duty as our president to investigate that and try to get the certification delayed until we could figure out what really happened. Anything that Trump did on the job in relation to that falls under absolute immunity. Or at least it should.
Judge Pan started the hearing off with an incredibly stupid question:
“Could a president order Seal Team Six to assassinate a political rival? That’s an official act, an order to Seal Team Six?”
That is such a dumb hypothetical. Even if a president ordered Seal Team Six to assassinate a political rival, there is nothing there to prosecute. Seal Team Six hasn’t done anything in the hypothetical. There’s no crime in a president giving the military an order, especially if the military hasn’t yet done anything in response. If Seal Team Six actually followed the order (which is unlikely), then it becomes a question of who gets prosecuted. Is it the president? SecDef? Seal Team Six?
It’s so dumb that it’s just amazing that Florence Pan is on the bench.
Trump’s lawyer tried to explain that the answer to the question is a “qualified yes.” If the president was swiftly impeached by the House under that hypothetical and convicted by the Senate, which he almost certainly would be, then and only then would that president NOT have absolute immunity and could face criminal prosecution.
That’s our specific process for this under the Constitution. Without an impeachment AND conviction happening first, a president has absolute immunity for actions they take while carrying out official duties.
A better way to explain absolute immunity—and I’m surprised that Trump’s lawyers didn’t think of this—would be to use a recent, real-world example. We have one of those.
In September of 2011, Barack Obama ordered an American citizen named Anwar al-Awlaki to be killed in a drone strike in Yemen. Al-Awlaki was a Muslim cleric. He had been accused by the Obama administration of aiding Al Qaeda in some way during the War on Terror. Al-Awlaki had not been charged with any crime. He had not been put on trial or found guilty by a jury of his peers. And Barack Obama killed him by dropping a bomb on his head.
Al-Awlaki’s 16-year-old son, who hadn’t even been accused of anything, was standing right next to his dad when Obama had them both killed. These were the first and only two extra-judicial killings of American citizens that have ever taken place as the result of a presidential order. That has never happened before or since that incident.
Question: Does Barack Obama have “absolute immunity” against prosecution for murder and manslaughter because he killed this father-and-son duo while denying them due process?
As morally and ethically repugnant as the answer might be to some of us, the answer is “Yes.” Barack Obama is, as of this moment, immune from prosecution for what was clearly a serious crime.
However, if the appellate court rules a few months from now that absolute immunity does not exist for presidents, it means that Barack Obama could immediately be arrested on murder and manslaughter charges. That example would have shut Judge Pan up in a hurry.
If President Trump does not have absolute immunity for his official duties when he was investigating a stolen election, then Barack Obama certainly doesn’t have absolute immunity from murder and manslaughter charges. Either they both have absolute immunity, or no former president has it.