Last week, Donald Trump directed hundreds of masked agents and soldiers, now armed, to “do whatever the hell they want,” presumably to whomever the hell they want, on the streets of the U.S. capital. Someone should do Trump a solid and explain, slowly, that when ICE starts murdering civilians on his request, he will be criminally liable for the bloodshed, and the immunity ruling won’t save him.
U.S. soldiers, trained to kill, are also trained to obey. But when a sitting Commander-in-Chief authorizes clear violations of federal law, soldiers have a legal duty to disobey. The good news is that four out of five troops who were recently polled said they understand their duty to reject illegal commands. The bad news is human nature.
As Trump sends more and more newly minted ICE agents marching across the streets of D.C. and other Democrat-run cities, along with the FBI, the DEA, U.S. Marshals, and the Bureau of Alcohol, Tobacco, and Firearms, on top of the National Guard, MAGA extremists among them will grow more and more confident in roughing people up and worse.
It's no secret that Trump’s MAGA fans, including the violent Jan. 6 criminals he pardoned, are champing at the bit to engage in more political violence in Trump’s name, especially if they are let loose on immigrants, Democrats, black, brown, or gay people. At Trump’s insistence, they are the targeted “enemies within.” When extremists are armed, pumped, and encouraged by the President of the United States to brutalize his domestic “enemies” any way they want, they won’t wait to be reminded.
Shooting unarmed civilians is not a core executive function entitling Trump to immunity
Trump’s directive, issued in conjunction with an unprecedented military deployment on domestic soil, literally invited federal troops to commit felonious assault on American citizens. Because such a blatantly illegal and unconstitutional directive falls outside Trump’s preclusive constitutional authority as defined in Trump v. United States, he will find no presumptive immunity for the bloodshed he causes.
A president's role as Commander-in-Chief of the U.S. military falls under his "exclusive constitutional authority," but encouraging soldiers to execute American citizens would not fall within this authority because it is patently unlawful. A president enjoys broad authority to direct the military with very few limitations, but one such limitation is that his orders may not contravene the Constitution or the laws of the United States.
Although the line between official and unofficial conduct requires further legal analysis, there is no immunity shield for blatantly unconstitutional acts, and there never will be. If Trump hadn’t traded competent legal advisors for bobble-headed Fox News sycophants, counsel would have told him that by now.
Even the shameful immunity ruling isn’t absolute
Despite lamentations from the dissent, the Roberts Court’s immunity ruling did not license Trump to commit murder. While Trump would argue that he has unchecked authority to declare bogus national emergencies, even under Justice Robert’s unitary executive license, Trump is only presumptively immune for actions taken in pursuit of his constitutional role as president.
Article II of the Constitution vests the president with the duty to “take Care that the Laws be faithfully executed,” and to “preserve, protect and defend the Constitution.” Encouraging federal troops to assault, physically abuse, or murder citizens is not an act to faithfully execute the laws, it is the opposite. Under the Constitution, no one in the national government — including Trump — may deprive another “of life, liberty, or property, without due process of law.” A presidential command to dismantle this constitutional protection could never, even under Roberts’ permissive structure, be deemed a ‘core constitutional function’ cloaked in immunity.
In Trump v. United States, the Court made very limited factual findings. Instead of addressing how Trump assembled and incited the Jan. 6 mob to violence, the court basically only ruled that the president was immune on charges related to Justice Department communications, not for the violent acts that followed. The court did not rule that Trump could organize a mob to attack the capital, or that Trump could murder his political adversaries, racial minorities, or members of the opposing political party. Post immunity, Trump’s executive power still remains subject to constitutional constraints.
The most violent day in our capital’s recent history was January 6, 2021. On that date, Trump lied about the outcome of the 2020 election to incite mass violence. This year, he’s lying about a “crime wave” in DC, a migrant invasion in LA, and other manufactured “emergencies” to incite mass violence.
Five people died from Trump’s three-hour attack on Jan. 6, and those cases are still pending.
How many people will die over the next three years of Trump telling masked agents to do whatever the hell they want?
Sabrina Haake is a 25+ year federal trial attorney specializing in 1st and 14th A defense. Her columns are published in Alternet, Chicago Tribune, MSN, Out South Florida, Raw Story, Salon, Smart News and Windy City Times. Her Substack, The Haake Take, is free.
