Why Trump Has Immunity for His Lawless, Lethal Attacks on the High Seas

Democratic lawfare, along with the president’s own renegade actions, helped get us to this point. 

F or nearly a quarter millennium, our nation had trundled along without an explicit acknowledgment that presidents have immunity from criminal prosecution for actions taken, however lawlessly, within the broad ambit of their executive power. Even the core of executive power. For today’s purposes, it doesn’t get any more core than the commander in chief’s power over the armed forces, expressly conferred by the Constitution (art. II, §2).

That changed in 2024, thanks to the combustible compound of Donald Trump’s lawlessness and the Democrats’ fanatical determination to address it by a constitutional anomaly: indictments of a former president, largely over his official acts as president. The result was the Supreme Court’s sweeping immunity ruling in Trump v. United States (July 1, 2024). And the result of that, it is no exaggeration to say, is the second Trump presidency.

Now, with the president’s lawless Caribbean Sea military campaign having just expanded to the eastern Pacific, it’s worth remembering this progression — Democratic lawfare to Trump 2.0, via the immunity decision. It’s worth remembering the immunity arguments, pro and con.

Hypothetically Speaking

Throughout the litigation, beginning in the lower court, judges indulged in that staple of legal argument: seemingly outlandish hypotheticals that pushed advocates to the ultimate logic of their positions. Along these lines: What if the president were to use his power to command the armed forces to carry out illegal killings?

Of course, some of these questions were too farfetched to be taken seriously. Our highly trained military services would not murder a president’s political rivals, even if ordered to do so. Various fail-safe mechanisms along layered chains of command, not least honor, prevent that.

The better questions posited scenarios more ambiguous and thus realistic: What if the president, with no authorization from Congress, ordered attacks against foreign regimes that had not militarily attacked or even threatened the United States, causing death and courting all-out war? Are you saying such a president could not be prosecuted?

Such hypotheticals are now our reality. The death toll has reached at least 37 on the high seas off South America. Between September 2 and this week, it appears there have been nine American military strikes, lethally targeting vessels ferrying narcotics enroute to the United States — the president says with certainty but without showing proof.

The Specious Analogy of Drug Shipments to Weapons of Mass Destruction

Absurdly, Trump analogizes drug importations (a crime) to WMD strikes (acts of war). At Pearl Harbor and on 9/11, innocent people were slaughtered in hostile aerial attacks seeking to defeat the United States by force. Unlike fired munitions, packaged illegal drugs are shipped to the United States because there is a thriving market; the incentive is largely financial, not military, and American consumption habits are a significant contributory cause of death.

According to the National Survey on Drug Use and Health, about 70 million Americans engaged in some form of illicit narcotic use in 2023. There is overlap in the different drug categories, and the total number plummets if marijuana is stripped out. But in the categories of our concern — i.e., imported illegal drugs — it is estimated that about 5 million Americans used cocaine, more than 800,000 used fentanyl, and close to 700,000 used heroin. (By comparison the numbers for other commonly abused narcotics include around 8.8 million for hallucinogens and 2.6 million for illicitly produced methamphetamine; the misuse of otherwise legal prescription medications is far afield from our topic, so I won’t delve into it.)

Let’s assume the reported numbers are low. Let’s estimate for simplicity’s sake that 10 million Americans consume illegal drugs shipped from overseas (other than marijuana, which, while federally prohibited, is legal in many states — and noxiously ubiquitous in our cities). That would equate to about 3 percent of the U.S. population. By contrast, the percentage of Americans who die annually in a manner related to illegal narcotics is 0.03 percent.

That last, vanishingly small figure is notable. The president boasts that each U.S. military attack saves 25,000 American lives. In point of fact, there are just 100,000 drug-related deaths in the U.S. annually. Each is heartbreaking in its own way; drug abuse wrecks families as it destroys lives. I don’t regret a moment of the years I spent prosecuting major international drug importers and distributors. Still, we’re up to nine boats now, and the president is vowing to move his unauthorized, unprovoked military campaign to ground combat. We should acknowledge that his math doesn’t add up.

Neither do his semantics. As Rich Lowry and I have discussed on our podcast, you may have noticed that fentanyl seems to be the only F-word the president has stopped using. That’s because fentanyl, the poison fueling the surge in American drug deaths these last years, is principally manufactured in Mexico, often with China-supplied precursors. It is not manufactured or even shipped via the Caribbean Sea or the eastern Pacific. Those are cocaine hubs — and Venezuela, ostensibly the president’s main target, is a transit depot not a production center (in the main, coca is produced in Colombia, Peru, and Bolivia — the so-called Andean Triangle).

As the above statistics elucidate, there is a lucrative cocaine market in the United States because of its recreational use. Sure, cocaine is addictive and some die from long term abuse (and others from the violence attendant to an illegal business). Plainly though, cocaine is not fentanyl. The boats Trump has decided to blow up, to the extent they may be importation vessels, are cocaine boats, not fentanyl boats.

That doesn’t fit the Trump narrative. No drug could because foreign drugs shipments are not enemy regime missiles. Still, at 50 to 100 times stronger than morphine, fentanyl is far more dangerous than cocaine. So now, in describing the military strikes, the formerly fentanyl-focused administration says “narcotics” and “drugs,” figuring no one will be any wiser about the disconnect between fentanyl deaths in our country and use of lethal force on the high seas off South America.

Presidential Lawlessness and Criminal Prosecution

Before entering his second term, the president’s propensity to defy the law was well established, even if it was not certified by judgments of criminal conviction. (By the way, in the pre-Clinton era, Americans used to understand that a president could act lawlessly, condemnably, and impeachably even if no indictments, convictions, and incarceration followed. Go ask anyone who lived through Watergate, which is not exactly forever ago.) Trump acted lawlessly in the stop-the-steal aftermath of the 2020 election that led to the Capitol riot. He acted lawlessly in his post-presidential obstruction of a righteous grand jury investigation into his illegal retention of classified intelligence at his Florida residence.

(As I’ve contended, the Mar-a-Lago misadventure might well have resulted in federal criminal convictions if Biden DOJ special counsel Jack Smith had not overcharged the case by larding the indictment with dozens of classified information charges, thereby ensuring that it would take years to get the case to trial. A simple obstruction charge would have needed just a few months. There is little doubt that Trump — while not president and thus with no plausible immunity claim — misled investigators and thus the grand jury when he represented through lawyers that the documents he surrendered pursuant to subpoena were the only ones he possessed that bore classification markings. The evidence is overwhelming that he was still willfully hoarding other documents marked classified. That’s a simple case: The potentially complicated question of whether Trump had declassified the documents would have been irrelevant, and the obstruction charge could have been tried in a week or two.)

Let’s set aside the Mar-a-Lago documents case — besides the impossibility of getting it to trial in 2024, singling out Trump was unfair given the Justice Department’s failure to prosecute Hillary Clinton on similar facts. The big enchilada for Smith, Democrats, and the Biden administration was the January 6 case. That was their crown jewel. It was J6 into which they’d poured enough resources to charge 1,600 people — not just the rioters who’d assaulted cops and damaged property, and who deserved stiff sentences, but hundreds of misdemeanants who’d done nothing more than parade about the Capitol grounds — people who’d never have been charged in any other case, especially if they’d been parading around at a “mostly peaceful” George Floyd “protest.” It was the J6 case by which Democrats intended not merely to nail Trump but to indelibly brand his political base, all of it, as domestic terrorists responsible for an attack on “our democracy” more heinous than 9/11.

This combination — Trump’s lawlessness and the Biden Justice Department’s determination to address it by an unprecedented criminal prosecution that stressed our constitutional framework — has proven catastrophic.

The reasons for this are clear.

Our Constitution’s answer to presidential lawlessness is impeachment by the House, conviction by the Senate, and consequent disqualification from future public office. Prosecution in the criminal justice system cannot work. It cannot work against a sitting president, to whom the Justice Department is subordinate. It cannot work against a former president because that would paralyze sitting presidents: a president cannot perform the role of chief executive contemplated by the Constitution if, upon leaving office, he or she must fear prosecution (or civil suit) over controversial actions. That’s especially the case when, as now, lawfare is in fashion and partisans prosecute each other, no matter how trivial the alleged crime, to punish competing policy agendas.

Moreover, the public was deeply offended by the lawfare campaign. To be sure, even before lawfare really took off in 2023, the public had already been put off by the Democrats’ empowerment of their woke-progressive base after masquerading in the 2020 campaign as moderate pragmatists who would ease the country past Trump and Covid. But it was umbrage at lawfare that consolidated support for Trump among Republicans, who found the final weeks of Trump’s first term easier to forget (or reimagine) after the Biden years of inflation, Covid-rationalized authoritarianism, anti-police activism, surging urban crime, humiliation on the global stage, and a patently senescent president. Lawfare also alarmed fair-minded moderates: Even if they found Trump unpalatable, they grasped that if someone of his wealth and power could be laid low by abuse of the legal system, it could be done to anyone who dared oppose progressive pieties.

Between these developments and the Democrats’ nomination of candidates who were patently not up to the job, the unpopular Trump became an acceptable alternative to slightly less than half the country — 49.8 percent. (That was about 3 percent better than I’d believed he could do — thank Biden and Harris.) Trump’s incontestable but slim margin — just 2 million more votes than Harris out of almost 160 million cast, a margin of just 1.5 percent — was enough to win an electoral majority, despite the unfitness of character Trump exhibited in his first term.

The Immunity Ruling

Most germane for present purposes, the Biden lawfare campaign against Trump inexorably resulted in a spirited criminal defense. Team Trump, led by now-Solicitor General D. John Sauer, a superb appellate lawyer, stressed the centrality of an energetic, uninhibited presidency to our governing framework.

In their monomaniacal loathing of Trump, Democrats and anti-Trumpers could see no higher interest than his prosecution. They wanted him convicted, sentenced to prison, broken financially, and smoldering politically. Sounding exactly like the MAGA devotees of today’s Trump DOJ lawfare, they wanted accountability.

Impeachment hadn’t worked. At the time, Trump seemed to be a spent political force, so House Democrats opportunistically politicized the process, hoping to brand Trump supporters as the new Third Reich. The result was an incompetently investigated set of impeachment articles, ensuring that any slim possibility of Senate conviction was lost. The January 6 Committee also hadn’t worked. As unabashed political theater, it annealed the bond between Trump and Republicans while discrediting Democrats in the public mind.

After those failures, there was nothing left but prosecution. Democrats calculated that prosecution would tie Trump to courtrooms in the months when a major party presidential nominee needs to be on the campaign trail. Progressives demanded an indictment, and the Biden DOJ gave it to them — after all, a Trump J6 conviction was probably Biden’s only path to reelection.

The rest is history. The Biden DOJ’s J6 prosecution of Trump led to the Supreme Court’s sweeping immunity decision. The ruling that came after all those tough hypothetical questions — stark questions that pitted the imperative that a president have a free hand to take aggressive action in the national defense, against our conceit that no one, including the president, is above the law.

There is no law more natural, more viscerally understood, than the prohibition against killing without just cause. Killing that is not in self-defense. Killing that is unprovoked by a military attack or threat. It is malum in se. It profoundly offends our moral sense, the foundation of our law.

For those reasons, the crime of killing without cause became, in the immunity litigation, the touchstone for hypothetical questions posed by the judges and, eventually, the justices. What if the president, without anything close to just cause, starts a war?

It had always been apparent, if you let your mind go there, that a president could not be stopped from doing that, even if we — or at least most of us — would say it was blatantly illegal. But from 1789 up until the Trump ruling during the run-up to the 2024 election, presidents had been left to wonder whether indictment and imprisonment could result from such a grotesque abuse of power. It was a rational concern. We know that because, before the Supreme Court finally decided the immunity issue, lower federal courts, including the prestigious D.C. Circuit Court of Appeals, ruled that Trump could indeed be prosecuted over official acts that were far less serious than illegal killings.

Those were the rulings that the immunity decision reversed. It is not enough to say that the Court held presidents presumptively immune for any official acts within the capacious ambit of executive power. The Court went further, telling future presidents — telling Trump, it turned out — that they have absolute immunity from prosecution for core presidential actions, and that the presumptive immunity for everything else could well become absolute immunity if it were demonstrated that prosecution could harm the presidency.

And the Court was emphatic: Don’t tell us about impure, corrupt, or even criminal motivations. If what a president has done is within his executive authority, courts — and, derivatively, prosecutors — have no authority to question a president’s motives. If the commander in chief gives an ostensibly lawful order, the judiciary may not probe his state of mind. In this constitutional system, only Congress has the whip hand against abuse of executive power.

The Wages of Presidential Immunity in the Age of the AWOL Congress

Was the Court wrong? I don’t think so, not as a matter of separation of powers principles. The Constitution is not so much a legal document as a division of political authority, not a contract but a compact. The law cannot fix structural political problems. If Congress won’t perform its vital functions, the law can’t compensate for that — as Democrats learned to their chagrin when their lawfare against Trump crashed and burned, and as Trump supporters are about to learn when the Trump DOJ’s lawfare meets the same fate.

If Congress doesn’t do its job, you will be endlessly frustrated if you expect the criminal justice system to deliver the lost accountability.

More to the point, if Congress doesn’t do its job, then the president can do whatever he wants, subject only to his perception of the political damage he can afford to sustain. It’s not right, but it’s a fact. And presidents who are worried about neither the next election nor the possibility of post-presidential prosecution are apt to have a highly inflated perception of the political damage they can afford to sustain.

So, as this is written on Thursday, the president has blown up two more boats this week. More than three dozen are dead. Without a trace of doubt or remorse, he says that’s just the start.

You want to spin DOJ Office of Legal Counsel opinions (e.g., here and here) about how the president’s unilateral authority to employ military force against foreign threats to American security has morphed over time into, in essence, the power to do whatever the hell he wants to do as long as he rationalizes some “national interest”? You can tell yourself that.

I’m here to tell you that in the United States, narcotics importation is a crime — a very serious crime, yes, but under our law’s clear definitions, it is not terrorism. Even less is it an act of war. It is not a military threat of any kind. That is why, when two supposed “narcoterrorists” somehow survived one of the missile strikes Trump ordered, the administration returned them to their home countries of Ecuador and Colombia. For all the presidential bluster equating drug shipments with weapons of mass destruction, administration officials knew there was no legal basis to detain the two men as alien enemy combatants (just as there had been no legal basis to fire a missile at them); officials knew that if the pair had been referred for prosecution, (a) that would underscore that drug importation is a crime not an act of war, (b) the administration would need courtroom proof beyond a reasonable doubt to support its claims, and (c) there’d be no fentanyl.

The president has no coherent explanation for why we are killing people: He started out telling us they were operatives of Nicolás Maduro’s Venezuelan regime (operatives who had conducted an “invasion” of and “predatory incursion” in the United States); now though, we find ourselves firing missiles at Ecuadorans because the administration vaporously claims the “narcoterrorists” are “nonstate actors” whom we have militarily engaged in a “non-international conflict” — i.e., Trump claims a general, unrestrained license to kill anyone, anywhere, whom he suspects of ferrying illegal drugs. (Paradoxically, the only apparent state actor in the equation, Maduro, was indicted in 2020 by the Trump Justice Department for the crime of narcotics trafficking.)

Such conundra, you can be sure, explain why Admiral Alvin Holsey, the head of U.S. Southern Command, suddenly announced his retirement last week in the middle of the biggest operation of his distinguished, nearly four-decade career.

Even when Congress enacted laws empowering the executive branch to designate foreign terrorist organizations, those laws authorized prosecution and the seizure of assets, not the use of force. To authorize military force in the absence of an actual military threat to vital American interests, the president needs approval from Congress — the branch to whom the Framers gave the power to declare war. Otherwise, the use of force is illegal.

But then again, what is the practical significance of the fact that unjustified killing is illegal? The Supreme Court’s answer to the hypothetical was the very answer that now-President Trump urged: Yes, a president who resorts to commander in chief power to order lethal attacks against foreign actors who have not threatened the United States has absolute immunity from criminal prosecution. That is the bottom line on which this president is operating.

Any executive abuse of power, even killing without just cause, is for Congress to address. That would be the Congress controlled by Republicans. You’ll find them cowering under their desks.