Following the ruling by SCOTUS in Trump v. United States (2024) that Presidents enjoy absolute immunity for their exclusive powers and presumptive immunity for their remaining official acts, I have seen it claimed by many that the president could kill people, e.g. assassinate a political rival using the forces at his disposal, and be immune to subsequent prosecution.

For example, this question was asked by Judge Sotomayor during the hearing of above case.

To me, the answer is quite obviously a resounding "no". Yes, the US president is the commander-in-chief, but his official duties are to lead the militia in its defense of the country. So, in order for an assassination to be considered an official act, it would need to be demonstrated that the act was done in reasonable adherence to said duty, which clearly would not be possible to demonstrate (in practice it would probably be the prosecution who would have to demonstrate the inverse, but that would be trivial.).

So why is Judge Sotomayor, and others, implying that this precedent allows the US president to kill people at will?


7 Answers 7


Obama started killing Americans with Predator drones more than 15 years ago, and nobody has dared to prosecute him. So it is already stablished that POTUS can kill Americans at will. The American Civil Liberties Union sued the government because of the targeted killings of three American citizens, some of them who hadn't even been accused of committing any crimes. The Obama administration claimed its right to kill whoever they wanted to, without restrictions or supervision.

The most the ACLU got from the courts was the government producing a document detailing the alibis that could be used to justify killing an American citizen at will. At present, it would be enough to label the target as "terrorist", and then you're safe to go and kill the target - there are no prerequisites to being considered a terrorist.

  • 12
    The problem with those kinds of U.S. war crimes, crimes against humanity and otherwise morally dubious actions is that there often was a lack of intent to prosecute. Like Obama did it, but the Republican party didn't dissent, on the contrary they approved of the drone program and extended it under Trump while limiting it's transparency. Also, being pretty cynic, these problems were far away. Like this being labeled terrorist and killed without due process was for citizens abroad. While their own descend into tyranny should still bother the U.S. a lot more.
    – haxor789
    Commented Jul 3 at 9:31
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    This answer is somewhat incomplete. It doesn't mention Executive Order 11905 or Reid v. Covert, which arguably put these sort of extrajudicial assassinations on very shaky ground, legally. Nor does it mention that the case Al-Aulaqi v. Obama —the ACLU lawsuit mentioned in the question—was not resolved in favor of the Obama administration, but rather dismissed for lack of standing to file the case and on the basis that decisions of military foreign policy were non-judiciable.
    – Obie 2.0
    Commented Jul 3 at 16:06
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    This is relevant because the main concern of the dismissal for being non-judiciable was that a decision requiring future oversight of details of foreign military operations fell outside the remit of the court. While not a particularly beneficial decision, it is doubtful that it created a precedent that removed liability for individuals for any actions engaged in under any such circumstances, and since it mentioned that this question was tied to the facts of a particular case, it's also doubtful that it applied unrestrictedly to domestic official actions by the executive.
    – Obie 2.0
    Commented Jul 3 at 16:21
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    The relevance of the Trump case is that it (a) applies to all official acts, not just foreign military policy, (b) is an actual ruling on the merits of a case, not a dismissal for lack of standing or judiciability of a specific case, and (c) establishes a lack of individual liability, instead of merely barring preemptive oversight. These are substantive legal questions, so the answer is incomplete, insofar as the impression one could get from it is that the Trump case is of no legal relevance.
    – Obie 2.0
    Commented Jul 3 at 16:27
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    @BenVoigt - It's not that the recent ruling is not a statement about judiciability, and it certainly does not prevent impeachment or compel reelection. It's that the case was not dismissed, and I don't think Al-Aulaqi v. Obama really precluded individual liability. What the ruling deemed as not judiciable was details of military and foreign policy, but indicated in my comment, people have still been held criminally liable despite acting in the service of military foreign policy. But the Trump case seems to close that possibility for the president, even after they have left office.
    – Obie 2.0
    Commented Jul 3 at 20:05

It's important to note what the ruling actually covers. I'll borrow from this good summary on Law.SE

  • For acts within the President's "exclusive sphere" of constitutional authority (also referred to as "conclusive and preclusive" authority), President has absolute immunity from criminal prosecution (pp. 6-9).
  • For "official" acts that are not within that central core, (“acts pursuant to an express or implied authorization of Congress,” or in a “zone of twilight” where "he and Congress may have concurrent authority"), the President does not have absolute immunity. Instead, here the President only has presumptive immunity from criminal prosecution (pp. 9-15). For such acts, the President is immune from criminal proseuction "unless the Government can show that applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch'" (p. 14).
  • For unofficial acts, "there is no immunity" (p. 15).

Rekesoft is right in pointing to Obama as a case where the President unilaterally killed a US citizen without any due process. That having been said, the person in question was Anwar al-Awlaki. In this case, the man might have been a US Citizen, but he was living in a foreign country and actively fomenting terrorist sentiments. That doesn't apply to a lot of people. It's arguable that killing someone who is encouraging violence against Americans on foreign soil is an official act.

Let's take a look at a more pragmatic case. A quote by Trump himself

"I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?" Trump remarked at a campaign stop at Dordt College in Sioux Center, Iowa. "It's, like, incredible."

Assume, for the sake of argument, that Trump actually did this while still President. As we've seen in the campaign finance case, Trump would be subjected to state laws about guns as well as attempted or actual murder. It would also be hard to argue this was an official act as President.

Let's pivot to Sotomayor's example. This is the full text of the ruling. (page 29)

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in ex- change for a pardon? Immune. Immune, immune, immune.

The problem for Sotomayor is that Trump is still under Federal indictment for acts taken while President. The ruling only specifies that Presidential immunity actually exists, not how much is covered by it. How much of the three Federal indictments remain is something to be sorted out by courts (and SCOTUS left considerable wiggle room). If Trump were as immune as she claimed, the indictments would have been thrown out. Thus a President can still face charges after leaving office (something long established by Gerald Ford pardoning Richard Nixon).

Both the Seal Team 6 assassination and coup examples fall outside the Article II "core" powers. Moreover, the people who would have to carry out such orders would not share in any immunity claims. Being given an order by a President does not automatically make said order lawful. In the My Lai massacre, military personnel were charged with crimes (only the commander was found guilty). Both hypothetical orders could be considered illegal (Law.SE has a good discussion on the legal ramifications)

But the greatest torpedo to Sotomayor's dissent was in the ruling itself (starting page 39, some notes trimmed for brevity)

Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President “above the law.” As before, that “rhetorically chilling” contention is “wholly unjustified.” Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.

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.” 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.

Assuming that either Sotomayor scenario ever happens, it's unlikely a Federal court would read this decision and assume that a political execution via Presidential power is subject to Presidential immunity (especially if Congress were to impeach and remove said President).

  • 29
    "Moreover, the people who would have to carry out such orders would not share in any immunity claims." - the President can pardon federal crimes. Trump has pardoned actual killers (four Blackwater military contractors convicted, one of first-degree murder, for their involvement in the Nisour Square massacre).
    – Lag
    Commented Jul 3 at 15:45
  • 19
    I rather disagree with this reasoning. Roberts put almost any kind of talk by the president to the underlings (e.g. those in the DOJ) as an official act. So, POTUS telling Seal Team 6 to do this or that is very similar. Commented Jul 3 at 16:36
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    -1. The judicial branch not adhering to it's own decision does not "torpedo Sotomayor's dissent", that's paradoxical. As ruled this week, the president has absolute immunity for official acts and assumed immunity for the "outer limit" of his duties. It's a big stretch to declare deploying Seal Team 6 as commander in chief, not an official act, while deploying the justice department in any way you see fit, is.
    – I Funball
    Commented Jul 3 at 16:50
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    "it's unlikely a Federal court would" Why is it unlikely? Considering the president appoints those judges and with enough "gratuity" anything is possible.
    – Dan M.
    Commented Jul 3 at 17:22
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    Exactly how can you argue that giving an order to the US armed forces not a "core power" of the president? Remember, the illegality of the communicated information doesn't change things under the majority opinion.
    – Yakk
    Commented Jul 4 at 13:58

Laws are just a piece of paper

You're looking at this from a purely legalistic perspective, which makes sense in some contexts and doesn't in others. What the law says or doesn't say about the President killing an election rival hardly matters. What matters is the reaction of society at large to such an event, particularly the reaction of the armed forces and other members of the community who have firearms and the will to use them.

In the US its very likely that such an assassination will be seen as extremely controversial and society will find a way to remove such a President from power. The President could stand around and yell words about how the law says X and how they must be granted immunity but any law is just a piece of paper and will not protect them in an extreme tail case scenario where the action is an obvious violation of societal standards. Or perhaps the President will convince the army to join his side and effectively takeover power as a new dictator - this is something that frequently happens in various unstable developing nations.

  • 4
    @JoeW society isn't controlled by laws, its controlled by humans. Said person could be thrown into jail and the law could simply be ignored at will, if enough people think that's the right course of action. It would be a completely unprecedented situation and the punishment could also be completely unprecedented. Commented Jul 3 at 18:05
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    @JoeW a President killing their opponent willy-nilly is such a massive violation of norms that the Supreme Court will no longer be powerful enough to protect said President against retaliation. Commented Jul 3 at 19:42
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    And the concern is if they do it through an official act that they would be immune from criminal punishment for it. While you say it is such a volitation of norms it wasn't that long ago that we thought it would be unthinkable for any president to try and overturn the results of an election that they didn't win.
    – Joe W
    Commented Jul 3 at 21:34
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    In this case, we're not talking a "piece of paper" law, but rather a court ruling setting a "precedent". This a key feature of the common law system at work - which countries who inherited their legal system from England have. In this system, laws as they are intended to work, are most definitely not confined to what is written
    – Pete W
    Commented Jul 4 at 0:12
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    In the US its very likely that such an assassination will be seen as extremely controversial and society will find a way to remove such a President from power. — I hope that is true today, but even if it is, democratic decline can go quickly and it may not be true in the future. Getting rid of a dictator is possible (as history has clearly shown), but it is quite risky to assume that society will find a way to do so (the way it is phrased makes it sound easy). This way might go through civil war.
    – gerrit
    Commented Jul 5 at 7:14

Yes, the US president is the commander-in-chief, but his official duties are to lead the militia in its defense of the country. So, in order for an assassination to be considered an official act, it would need to be demonstrated that the act was done in reasonable adherence to said duty

I hope that if such a scenario were ever to arise, then the courts would indeed chart a course along those lines. That seems to be in the interest of justice, and consistent with both the SC decision and the founding principles of the country.

So why is Judge Sotomayor, and others, implying that this precedent allows the US president to kill people at will?

I'm inclined to think that Justice Sotomayor had a variety of reasons, some of them tending to the rhetorical. Nevertheless, neither Sotomayor nor any of the rest of us can be sure that a court faced with such a scenario would indeed rule as you suppose. One might, for example, halt the analysis at the President being empowered to issue orders to the U.S. armed forces, and on that basis decide that immunity for official actions applied. Whatever else her motivations may be, Sotomayor would prefer not to open a door for future courts to do the wrong thing (as you or I would judge it) in such a case.

Although I take Sotomayor's assassination scenario as somewhat hyperbolic, and I don't care much for the style and tone of her dissent, she does have some some important things to say. I rarely agree with her on controversial questions, but here, she persuaded me (through other, more analytical parts of her dissent) that the majority decision in this case has a shaky foundation at best, and contains components that seem both unwarranted and at odds with precedent.


You're asking two diff Qs here. You may or may not agree with the 3 liberal judges, but if you want to read their reasoning, I'm sure that's easy to find. Your title Q seems to be asking if they're right in their assessment, which may be veering towards the opinion-based. IIRC the SCOTUS majority judgement was that another judge has to determine whether anything the president does is in an official capacity or not.

Killing people with their own bare hands in a fit of rage, might not qualify as an official act. Ordering someone to be killed by the military may well qualify though [as official action], even if against Posse Comitatus, etc., e.g. on US soil. So the question, seems to me, is whether this broad presidential immunity for any official acts essentially leaves only impeachment as a recourse. And who'd be there to impeach him if he orders the military to arrest the opposition or the entire Congress? (And the military follows through. The only issue before a judge then would be whether such an order was official, not whether it was legal in any other sense, unless the act was first deemed unofficial. And it's hard to argue in any sensible way that POTUS ordering the military to do something is not an official act.)

FWTW, from press snippets:

Jackson warned that under the majority's "new Presidential accountability mode," a hypothetical president "who admits to having ordered the assassinations of his political rivals or critics...or one who indisputably instigates an unsuccessful coup...has a fair shot at getting immunity."

The chief justice dismissed the dissents, suggesting that his three liberal colleagues had misinterpreted the majority's opinion and were engaging in "fear mongering." Roberts argued that they "strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today." He wrote that "like everyone else, the President is subject to prosecution in his unofficial capacity."

Furthermore, Chief justice Roberts put under the clout of official acts almost any kind of talk of POTUS with/to his underlings.

But Chief Justice John Roberts, writing for the majority, preemptively determined that Trump’s interactions with justice department officials were official acts because they are part of the executive branch and answer to the president.

Roberts also determined that Trump’s interactions with Pence were presumptively immune, since the president discussing responsibilities with the vice-president was an instance of official conduct. The burden was on prosecutors to prove otherwise, Roberts wrote.

So, POTUS telling Seal Team 6 to do this or that is very likely similarly construed as an official act, at least "presumptively".

Ibid (WaPo):

Sotomayor warned that a president is now immune from criminal prosecution if he orders the Navy’s SEAL Team 6 to assassinate a political rival, or if he organizes a coup to hold on to political power.

  • 4
    If it helps improve the answer, wasn't firing the AG the example of absolutely immune conduct, for which even motivations don't apply? The answer could either dicuss how he could blatantly demand this of the AG, and fire AGs until one agreed, or do the same to the DOD.
    – bharring
    Commented Jul 3 at 17:05
  • 1
    Yeah, one of the problems with the fallout is to even understand what the actual changes were, one first needs to understand a lot of different legal and governmental details.
    – bharring
    Commented Jul 3 at 17:18
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    @bharring it's never been a crime for the president to fire the AG. The immunity protects the president from criminal prosecution, but that doesn't have any effect on acts that aren't crimes because such acts cannot form the basis of a criminal prosecution.
    – phoog
    Commented Jul 5 at 6:21
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    If the military obeys an order to forcibly end the impeachment process, which is clear violation of their oaths taken to the Constitution, the justice branch is equally powerless, and the SCOTUS decision is wholly and irrevocably mooted in that kind of scenario.
    – Ben Voigt
    Commented Jul 5 at 15:26
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    @phoog a crime that requires motive, such as attempted murder, might involve demanding AGs murder a political opponent, and firing people when they say no. The "act" of attempting to murder his opponent would be a crime. The act of communicating with and terminating an AG would be absolutely immune. But because he's absolutely immune, even video of him doing so is inadmissible. Worse, even, is prosecutors can't consider his motive, as it's an absolutely immune act. So he can't be convicted.
    – bharring
    Commented Jul 5 at 16:02

Think about how many people alive today who would be long dead if the president could “kill at will”.

The Supreme Court ruled that a president has the same immunity always given to

  • every state judge
  • every Federal judge
  • every district attorney
  • every US Attorney
  • every state’s attorney
  • every US Congressman

And we have already accepted this. In 2011, President Obama ordered a drone strike that killed a 16-year-old US citizen named Abdulrahman al-Awlaki. The administration claimed that the boy was not a target, but there is significant reason to doubt this. Few, if any Americans, believe that Barack Obama can be criminally prosecuted for this death.

I am not convinced of the argument that such absolute immunity — for anyone — is necessary for the government to function, but I must admit it’s a strong argument, and extending it to the president is not unreasonable on its face.

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    A lot of people are misunderstanding the significance of these ruling. It's less that it grants the American president immunity while in office — there were already some cases establishing this for civil matters, and there was a Justice Department policy that made it the case for criminal matters (and obviously, what Justice Department is going to allow a federal prosecution of the president that appointed it?) It's that it produces a lifetime immunity for such acts, even when the person is no longer president.
    – Obie 2.0
    Commented Jul 3 at 16:44
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    @Obie2.0 Immunity for a particular act would be largely toothless if it had an expiration date, or did you mean something else? Commented Jul 3 at 16:47
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    @IllusiveBrian - And yet, such immunity did not exist in US case law until the case in question was decided.
    – Obie 2.0
    Commented Jul 3 at 16:47
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    @Obie2.0, there was no reason until now for there to be any case law about such immunity. I am troubled by the SC's ruling in this case, but the absence of relevant case law is not at all a concern to me. Commented Jul 3 at 16:53
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    @MichaelLorton - It's significant because previously, there existed the possibility that a court might have held a former president criminally liable for official conduct during office that violated applicable laws, and now it is quite unlikely to do so. I would think the significance is obvious.
    – Obie 2.0
    Commented Jul 3 at 16:57

Sure, a president can kill someone, if they have means and opportunity to do so.

But, there are still laws. If a president violates the law, and wants to claim immunity, they and their attorneys would have to be prepared to convince a judge or jury that this is appropriate.

And there would be a prosecutor whose job it is to argue the opposite, beyond a reasonable doubt.

If a president decided one day, for example, that they wanted to walk down Fifth Avenue and kill someone, and they followed through on this, it's hard to imagine what the defense to this could be.

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    If he has immunity from those laws they don't mean anything.
    – Joe W
    Commented Jul 3 at 18:00
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    The question text clarifies that it is about whether the President would have immunity from prosecution in the event they order a government subordinate to kill someone, and in particular, about the implications of the SC's recent decision about presidential immunity for official acts. This answer doesn't engage any of the main thrusts of that. Commented Jul 3 at 18:26
  • 1
    Afaik the verdict says that the president can kill only in connection to his official duties. Thus, he can kill at will, for example, people in Iraq. If he just walks on the street and kills random people, that is not official duty, so he would be legally responsible.
    – Gray Sheep
    Commented Jul 4 at 7:08
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    @user3753318 And how long ago was it that we would have thought that a president trying to overthrow the results of an election they lost would be an outlandish situation that never would happen.
    – Joe W
    Commented Jul 4 at 20:40
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    @BenVoigt Are you really trying to compare a challenge using the court system to a sitting president calling officials to find them more votes or not to certify the votes? Or attempting to submit their own electoral college votes in an order to get different votes counted then what the sate submitted or get those state votes thrown out? Or calling for their supporters to storm the capital building during the vote process? There is a big difference between filing a case in the court system and following the ruling and trying to use any means possible to change the results.
    – Joe W
    Commented Jul 5 at 16:14

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