The terrifying SEAL Team 6 scenario lurking in the Supreme Court’s immunity ruling

In her dissent to Monday's Supreme Court ruling, Justice Sonia Sotomayor painted a grim portrait of a commander-in-chief now "immune, immune, immune" from criminal liability and free to exploit official presidential power against political opponents.

"Orders the Navy's Seal Team 6 to assassinate a political rival?" she wrote. "Immune."

As extraordinary as that prospect might sound, constitutional law experts say she’s right: The court’s decision in Trump v. United States really does appear to immunize a hypothetical president who directed the military to commit murder, though a president might be hard-pressed to find someone to carry out such an order.

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 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.

So the fact that Chief Justice John Roberts’ majority opinion on Monday did not attempt to directly carve out such extreme examples immediately raised alarm among some experts. Roberts’ opinion appeared to address the matter only obliquely.

He accused Sotomayor and the other two dissenters of “fear mongering on the basis of extreme hypotheticals.”

Northwestern Law professor Martin Redish maintained that Roberts focused too singularly on the importance of an energetic and empowered president, rather than considering the unique danger of the executive's control over the military.

“The executive is the only branch that could even conceivably become a tyrant,” Redish said. “Now, I don’t like situations where Congress interferes with presidential power either, but to give them a blank check to commit crimes?”

Richard Fallon, a constitutional law professor at Harvard Law School, argued the ruling does not leave presidential power completely unchecked. Lawless presidential conduct can still be prevented or unraveled by other parts of the Constitution — for instance, if a president illegally imprisoned a political enemy, that person would be entitled to a court order to go free.

President Joe Biden “is fettered in just the way the presidents were fettered the day before yesterday,” he said.

But the extraordinary scenario of an assassination ordered by the president would be different, Fallon acknowledged. It couldn’t be undone after the fact.

"The only thing that the law can do is impose criminal punishment,” he said — but the president would be immune.

The biggest challenge for a president ordering an assassination would be finding military personnel willing to carry out the order, legal experts explained. While the president himself would have the protection of immunity, others involved would remain vulnerable to prosecution because the Supreme Court’s decision doesn’t make the underlying act legal.

"If they are given an illegal order by the president or by someone who is directly answering the president, they may be in a position that they are subject to court martial in either direction," said Claire Finkelstein, a professor of national security law at the University of Pennsylvania.

A lawless president, however, could get around that problem by promising to pardon anyone who carried out his orders.

Finkelstein, who submitted an amicus brief in Trump’s case alongside 14 other national security professionals, warned that such a Catch-22 would create dangerous confusion within the military’s chain of command, undermining its necessary discipline and order.

Current and former military officials appeared to agree.

"Every situation has to be assessed on its own merit,” Maj. Gen. Pat Ryder said.“If you are a military leader, you are going to have the benefit of consulting counsel or policy makers in terms of whether an order or decision is legal, ethical or moral. That won’t change."

A former senior Department of Defense official, who spoke on the condition of anonymity to discuss sensitive matters, said the military won’t obey illegal orders. “It doesn't matter where it comes from.”

With the president's core constitutional powers — and their guaranteed absolute immunity — extending beyond the military and its potential exploitation, Finkelstein cautioned that tensions between the president and personnel could permeate the entire executive branch and the Justice Department in particular, creating "a situation where we're really about to descend into a state of chaos."

For Redish, the outlook appears just as foreboding.

"I can't imagine a better invitation to tyranny than the Supreme Court just gave," he said. "It's almost like they sent out a formal invitation — you know, dress wear is required."