The Court’s decision will have lasting implications for U.S. national security, democratic governance, and matters relating to the military chain of command

Claire Finkelstein, faculty director of Penn’s Center for Ethics and the Rule of Law (CERL), and 14 national security experts, including six CERL affiliates, among them two four-star generals, this week filed an amicus brief in the U.S. Supreme Court rejecting former President Donald Trump’s theory of presidential immunity on the grounds that it will imperil U.S. national security.

The brief argues that the claim of permanent immunity to criminal prosecution for crimes committed in official capacity poses a grave threat to democracy.

A president intent on using the U.S. military to achieve illegal aims could use his authority as commander-in-chief to issue orders requiring that subordinate officers either commit crimes or risk violating the duty to obey, posing a dilemma that would not only erode the chain of command but also have damaging consequences for civil-military relations and discipline within the ranks.

“The principle that no person is above the law is the foundation of democratic governance,” said Professor Finkelstein. “If the president could commit crimes with impunity, there would be chaos and lack of discipline in the chain of command. In this sense, good order and discipline in the military depends on the integrity and lawful conduct of its leaders. Our brief draws attention to the disastrous consequences the doctrine of presidential immunity would have for U.S. national security because of the damage it would impose on the U.S. Armed Forces.”

CERL signatories on the brief include General (ret.) James E. Cartwright, former Vice Chair of the Joint Chiefs of Staff; Lt. Colonel (ret.) Geoffrey S. Corn, George R. Killam Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy, Texas Tech University School of Law; Alberto Mora, former General Counsel of the Department of the Navy; Harvey Rishikof, former Director of Military Commissions and Convening Authority for the Department of Defense; General (ret.) Joseph Votel, former Commanding General of US Central Command; and Brigadier General (ret.) Stephen N. Xenakis, M.D.

“The rule of law must apply to presidents past and present to ensure accountability and uphold the principles of justice and equality,” said General Cartwright. “It prevents the abuse of power and ensures that all individuals, regardless of their position, are subject to the law.  For the U.S. military, the principle that no one is above the law provides for the essential transparency, fairness, and trust in the execution of their duties.”

“Lawful execution and accountability are critical requirements for the entire chain of command and underscore the legitimacy of our national security objectives,” said General Votel.

The U.S. Supreme Court will hear oral arguments on Trump’s appeal claiming he has immunity from prosecution in the January 6 case on April 25.  

About Claire O. Finkelstein

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania. She is a distinguished research fellow at APPC and a senior fellow at the Foreign Policy Research Institute (FPRI). Her current research addresses national security law and policy, democratic governance, and professional ethics.