In a sharp deviation from what the Founders intended, the U.S. Supreme Court ruled on July 1 that presidents enjoy absolute immunity from prosecution for official acts conducted in the execution of their duties, precedent that dramatically expands the power of the nation’s highest office.
Writing for the court, Chief Justice John Roberts waffled as to whether former President Donald Trump’s conduct leading up to the Jan. 6 Capitol attack qualified as official acts, and are therefore protected, or private acts, and thus subject to prosecution. And the court did not probe the question of what that could mean for anyone following the president’s orders, which has deep resonance in Virginia.
The former president was charged in 2023 by Special Counsel Jack Smith with conspiring to overturn the 2020 results in several ways, including pressuring former Vice President Mike Pence to deny certification of the electoral count affirming President Joe Biden’s victory. Trump maintains he acted within the constitutional scope of his office and, in April, his lawyers argued before the Supreme Court that a president should be immune from prosecution for officials acts.
A majority of the Supreme Court agreed and, in a 6-3 decision, concluded that “official acts,” such as urging Justice Department officials to investigate (unfounded) allegations of voter fraud, are immune from criminal prosecution. Roberts also wrote that a president acting in his capacity as a candidate or leader of a political party would not be so protected and, in Trump’s case, remanded it to a lower court to decide.
Justice Sonia Sotomayor strenuously disagreed with the decision, writing that immunity, “‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation. … 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 exchange for a pardon? Immune. Immune, immune, immune.”
Left unsaid is that those ordered by a president to carry out illegal acts may still face charges and puts the president’s subordinates in legal limbo. That brings us to Virginia.
Hampton Roads is home to approximately 83,000 active-duty service members, part of the roughly 124,000 members of the military who reside in the commonwealth. Among these are members of Special Operations forces, noted in Sotomayor’s dissent.
Justice Sam Alito noted in oral arguments that members of the military are bound to the Uniform Code of Military Justice to not follow “unlawful orders,” but a president cloaked in immunity may feel empowered to give unlawful orders. A SEAL asked to kill a political opponent or participate in a coup would face the choice of disobeying the commander-in-chief or acting absent the immunity enjoyed by the president. The president could issue a pardon, but that’s far from assured.
A similar scenario could be pressed to members of the civil service, who also represent a substantial part of Virginia’s population. The commonwealth has the third-highest number of civilian federal employees, and they too would face a dire choice should a president immune from criminal prosecution direct them to act in a way that may or may not be an “official act.”
The fact that the presidency endured for 235 years without having to seek legal resolution to the question of criminal immunity speaks volumes about Trump’s behavior while in office. That it is tied to an attempt to overturn the will of the people is grim, and lends fuel to those who doubt the institutions with authority to constrain the chief executive are up to the challenge.
But in ruling for the former president, the court potentially puts Americans serving this country, in the armed forces and in the federal bureaucracy, in a nebulous legal position. And that could well mean that those in such positions of public trust will one day face the consequences for acting as directed by a president shielded from the same.
