Trump’s Lawyers Argue Biden Can Assassinate Him

The arguments were stupid to begin with, but one judge’s question SEALed the deal.

(Photo by Michael M. Santiago/Getty Images)

I CONFESS TO A LONGSTANDING PREFERENCE for the Army’s Delta Force over the Navy’s SEAL Team Six. The preference is not rational—it is the product, no doubt, of some latent pro-Army sentiment because my stepson served in that branch.

Whatever the genesis, my prejudice caused me some consternation as I listened to Tuesday’s oral argument in the appeal of Donald Trump’s claim to absolute presidential immunity. Trump, through his lawyers, was making the claim that if he is not first impeached and convicted of certain conduct, he cannot thereafter be tried in criminal court for his official conduct. And he further contended that “official” conduct is defined by the nature of the act—not by its motivation or intent. In other words, according to Trump, so long as what a president does is plausibly official in its form, no criminal case could ever be brought if he was not first impeached and removed from office.

In response, Judge Florence Pan rather incredulously asked: Does this mean that a president can order SEAL Team Six to assassinate his opponent and, as long as he isn’t impeached, he can’t be criminally tried for murder? Trump’s lawyer tried to dodge the question but was forced to acknowledge the implications of his argument and agree.

My first reaction, as you might guess, was to lament that SEAL Team Six always gets name-dropped in absurd hypotheticals but Delta Force never does. My second, more serious reaction was YGBFKM. Are we seriously contemplating a rule that says a president can assassinate a rival and, as long as the House declines to impeach him or thirty-four senators from his own party decline to convict him, he is forever immune from criminal prosecution?

The implications are absurd. To begin with, as the special counsel’s lawyer, James Pearce, noted, there are many reasons why a senator might choose not to convict. During the latest impeachment, for example, more than thirty Republican senators justified their votes not to convict Trump for insurrection on the grounds that he had already left office.

Applying that logic and carrying it to its illogical conclusion, President Joe Biden could, today, order the Delta Force to kill Trump and then immediately resign, forestalling his impeachment. By Trump’s logic there would be absolutely nothing that anyone could do about it—without impeachment, he says, there is no crime.

But the ridiculous implications of Trump’s argument don’t stop there. Why would a murderer president even bother to resign? After sending Delta Force to kill Trump, President Biden could (under Trump’s theory) then send Delta Force (or, if we want to be inclusive, the Air Force’s 24th Special Tactics Squadron) out with orders to kill all of the senators who might vote against him in the impeachment trial. Because the form of the order was official in nature (what could be more official than the commander-in-chief issuing orders to a military unit?) the lack of impeachment would prevent prosecution.

One could go on and on with the absurd lengths of the hypothetical, but why bother? To state the logical consequence is to refute the illogical premise. Trump wants to be a king, immune from and above the law. But if he is immune, so is Biden.

I would never actually advocate that Biden take advantage of such a ruling and send in the Delta Force. If only because I don’t want to wake up to the Secret Service knocking at my door. But what is the law coming to when a former president can seriously argue for his plenary right to kill his opponents and yet still be considered a leading contender for election? The mind boggles and the rule of law shudders on its weakened foundations.