From Trump V. United States, majority opinion.
So explore with me, if you will, just how dangerous this expansion of executive power really is.
While the majority of the US Supreme Court does not define the “core constitutional powers,” certainly one of those “core” powers is the power given to the president to be the Commander in Chief of our armed forces. Former President Donald Trump has been a proponent of loosening the rules for our armed forces when they are abroad to allowing them to commit war crimes. This is not an exaggeration.
As Adam Serwer wrote in The Atlantic, Trump and his supporters see war crimes as a virtue:
On the campaign trail, Trump frequently invoked a false story about General John Pershing crushing a Muslim insurgency in the Philippines with bullets dipped in pig’s blood, declaring, “There was no more radical Islamic terror for 35 years!” He vowed to impose torture techniques “a hell of a lot worse than waterboarding.” Trump declared that he would “take out the families” of terrorist suspects, assuring skeptics that the military would not refuse his commands, even though service members have a duty to refuse orders that are manifestly illegal. “If I say do it, they’re going to do it.”
When Trump was president, he followed through with his support for servicemen committing war crimes by pardoning a number of them. The justification for Trump? “We train our boys to be killing machines, then prosecute them when they kill!”
One of those pardoned by Trump, 1st Lt. Clint Lorance. According to Politico, Lorance was found guilty of, “ordering his soldiers to fire on three men in Afghanistan in 2008,” Members of Lorance’s own platoon testified against him, As former Army captain Andrew Duggins, who served with Lorance, explained:
“That company had taken a number of casualties, and Clint’s attitude was, ‘I’m just going to go out there guns blazing and make a statement.’ He was scared to go out and do missions, and this was one of his very first missions. Privates came back from that mission in tears because they were shocked. They knew how wrong it was, and they knew that he had given an illegal order.”
But now Trump has a ‘Get Out of Jail Free’ card for any action taken as long as it is within the “core constitutional powers,” which presumably would include the powers of commander in chief. What if Trump authorizes the military to commit war crimes in a deployment overseas? What if Trump orders military personnel to commit a war crime?
It isn’t hard to imagine the scenario. Trump regularly refers to civilians illegally crossing our southern border as “an invasion.” We also know Trump’s contempt for human life for those trying to cross illegally. He even offered to pardon any administration officials who broke the law to build “the wall” on the southern border.
What’s to stop Trump from telling the military to open fire on unarmed civilians trying to illegally cross the border? According to the Supreme Court, Trump would be immune from prosecution despite committing a crime against humanity. Ironically, Trump would be in danger of being arrested anywhere else on the globe, but he would be immune from prosecution at home. As for impeachment, we had two opportunities to remove Trump from office permanently and the Republicans rescued their party leader twice.
We could imagine other scenarios, such as ordering the National Guard to fire upon any group of unarmed civilians peacefully protesting his Administration. Remember when the Trump administration used tear gas on peaceful protesters across from the White House? Trump’s first preference was to have them shot. Now he could “literally could shoot someone on fifth avenue,” or at least have them shot, claim it’s part of the “core constitutional duties” to restore law and order while serving as commander in chief and escape prosecution.
Trump could even pull a two-for-one and actually follow through on his threat to have Liz Cheney tried by a military tribunal. When that failed, he could direct the FBI and the IRS to investigate and arrest her – even search her home without a warrant.
All within the “core powers” of the Office of the President of the United States.
