Explaining Claims That The President Can Legally Assassinate His Political Rival After Recent SCOTUS Decision

The Supreme Court ruled 6-3 that former President Donald Trump had some legal immunity, according to SCOTUSBlog. The outlet said that the ruling stated that there is a “presumption that they have immunity for their official acts more broadly.”

A HuffPost article claims President Joe Biden could kill Trump and be have full immunity for prosecution.

The article is titled “Supreme Court Gives Joe Biden The Legal OK To Assassinate Donald Trump.” It claims that Biden could “theoretically” order for Trump to be killed and not be criminally prosecuted for it. The article cites Supreme Court justice Sonia Sotomayor’s dissent in the case.

“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,” Sotomayor wrote.

Check Your Fact reached out to multiple law experts to gain more insight into whether or not a president would be able to get immunity for assassinating his political rival.

Zachary Price, a professor at the University of California College of the Law, believes immunity for an assassination is possible.

“The majority opinion could make the President at least presumptively immune from criminal liability for an assassination to the extent that ordering it was an ‘official act,’ meaning an exercise of presidential powers, rather than personal misconduct,” Price said in an email to Check Your Fact. He added that such immunity would not extend to any subordinates that helped carry out the crime.

Michael C. Dorf, a professor at Cornell Law School, believes that, while the act would still be illegal from a technical standpoint, the potential to order military to conduct such an act complicates things.

“It would still be illegal but there’s a decent argument (made by Justice Sotomayor in dissent and not refuted by the majority) that if Biden ordered the military to do so, he couldn’t be prosecuted for it,” Dorf said in an email to Check Your Fact. Dorf, too, added that anyone who helped carry out the act could be prosecuted, but also said that they could be pardoned by the president. (Fact-Checking Biden’s Claim That Trump Referred To Veterans As ‘Suckers And Losers’)

Joshua Dressler, a law professor at the Ohio State University, also told Check Your Fact that “by my reading, if a President orders the military to kill a person, including an American citizen, [they] would have full immunity.”

“And, because Chief Justice Roberts stated that it is impermissible to consider a President’s motive for his actions, it is legally irrelevant whether the President is acting to protect national security or kill someone he doesn’t like,” Dressler said.

Some legal experts have said Sotomayor is exaggerating, according to CBC. However, Harold Hongju Koh, a Yale Law School professor, told the outlet that if the law is read at value, it’s true that it would provide such immunity, but added that the majority justices did not intend to address this issue.

Lucinda Finley, a professor at University of Buffalo School of Law, told Check Your Fact that she believes the president receiving immunity for murder is “possible but unlikely.”

“As for ordering the assassination of a domestic political rival, that could be considered an “unofficial act” related to personal political interest. But there would have to be an extensive evidentiary hearing to determine whether the President was acting as a candidate or as commander in chief,” Finely said.

Former Attorney General Bill Barr dismissed Sotomayor’s examples as “horror stories,” according to The Hill.

“[The president] has the authority to direct the justice system against criminals at home. He doesn’t have authority to go and assassinate people,” Barr said. “So, whether he uses the SEAL team or a private hit man, it doesn’t matter; it doesn’t make it a carrying out of his authority. So, all these horror stories really are false.”

Chief Justice John Roberts wrote in his majority opinion that the “the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute.”

“Because we need not decide that question today, we do not decide it. ‘[O]ne case” in more than ‘two centuries does not afford enough experience’ to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution,’” Roberts wrote.

Joseph Caiseri contributed to this report.