Can the US president legally kill at will?

Question

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?

Answer 1

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.

Answer 2

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).

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

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.

Answer 7

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.