James Petrila, an adjunct professor at George Washington University School of Law, is a former lawyer with the National Security Agency and the CIA. John Sipher, a nonresident senior fellow at the Atlantic Council and host of the podcast “Mission Implausible,” worked for the CIA’s clandestine service for 28 years.
The Supreme Court’s recent ruling on presidential immunity has triggered heated discussion about the latitude it affords any future president to force the U.S. military to obey an illegal order. Justice Sonia Sotomayor posited in her dissent that the president could command the Navy’s SEAL Team 6 to assassinate a political rival and remain immune from prosecution.
While that scenario is highly unlikely, there is a far more realistic one that is potentially a greater threat: The ruling could turn the CIA into a tool of executive overreach — something that decades of reform have attempted to overcome.
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The court’s decision in Trump v. United States has created a situation that gives the president supreme authority to execute “official acts” even if they are illegal, but does not hold him responsible for them. It gives absolute immunity to “core constitutional powers” and states that the president’s presumption of immunity for all other official acts can be overcome only if a criminal prosecution presents no “danger of intrusion on the authority and functions of the Executive Branch.”
In practical terms, this means that a president may direct the CIA, or a private paramilitary organization similar to Russian mercenary Yevgeniy Prigozhin’s Wagner Group, to engage in illegal activities. A president could also order the director of the CIA not to brief Congress on such activities. With this ill-considered decision, the court has rolled back the significant intelligence reforms that came out of the 1975 Church and Pike committee hearings that put intelligence activities under U.S. law and congressional oversight.
Those reforms built institutional barriers to prevent abuses common in the early years after World War II, when presidents could order the CIA to conduct overseas operations, including attempted assassinations, without restraint from Congress or the Justice Department. The early CIA overthrew the duly elected leaders of Iran and Guatemala and routinely disregarded Congress. During the same period, J. Edgar Hoover’s FBI regularly trampled civil rights and engaged in black-bag jobs for presidents that included secret surveillance of U.S. citizens, again with no congressional oversight or judicial intervention.
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The 1970s reforms were developed to prevent a powerful, unaccountable, out-of-control secret bureaucracy. They reined in executive overreach, established congressional oversight, ensured greater accountability and have provided the legal basis on which the intelligence community has operated for the past half-century. The CIA in which the two of us operated throughout our careers took seriously its obligation to act within clear legal boundaries and accede to congressional oversight.
That could all change now. Because of the inherent difficulties involved in ordering the military, with its separate judicial system under the Uniform Code of Military Justice, to engage in illegal activities, it is far more likely that a president would turn to the CIA or engage with private paramilitary groups to carry out any questionable “official acts.” The CIA has the authority to provide the kind of clandestine support necessary to fund a private paramilitary organization (e.g., offshore bank accounts, corporate structures) for both domestic and foreign operations. With approval from the attorney general, such operations could fall under the National Security Act as “other functions and duties related to intelligence affecting the national security as the President . . . may direct,” which would place them outside the existing laws dealing with covert action.
Whether the goal is to dispatch private paramilitary teams to the southern border with “shoot to kill” orders to prevent illegal crossings; use private hires to hack political opponents; or provide armed support to prevent the counting of electoral votes under the guise of “election integrity,” ordering any of these illegal activities would constitute an “official act.” They are all closely related to core executive branch functions that the court says are necessary for an “energetic executive” (i.e., protecting against foreign attacks, protection of property and securing of liberty). Prosecuting the president for these activities would almost certainly be barred, because any prosecution would present a danger of intruding on the “authority and functions of the Executive Branch.” Engaging the CIA would add a layer of secrecy, and using private paramilitary groups would protect any illegal operation from exposure through such laws as the Freedom of Information Act, which applies only to government agencies.
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The court’s decision further states that in distinguishing official from unofficial conduct, courts may not inquire into a president’s motives. If a president should choose to declare a political rival guilty of treason, deploy a paramilitary group to assassinate that rival and direct the attorney general to sign a document saying that said rival’s death is necessary for the “securing of liberty,” these would be official acts for which the president is immune. Unlike England’s King Henry II — who gave himself plausible deniability by wondering aloud, “Who will rid me of this meddlesome priest?” — the newly immune president would have no need to speak obliquely.
An additional sweetener for future presidents is the ability to effectively extend immunity to any participants in their illegal projects. The Trump decision emphasizes that the president’s pardon authority is absolute. A predictable step would be the issuance of prospective pardons for anyone involved in a chief executive’s unlawful schemes.
The Trump decision thus manages to turn the essence of the Nuremberg trials — that “just following orders” is not a defense to a war crime — on its head: It provides absolute immunity for the president, unqualified authority to pardon in advance underlings who follow illegal orders and no legal accountability for obvious criminal activity.
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The country can only hope that these outcomes are not what the court had in mind when it referred to the “lasting significance” of its decision. But they are undeniably plausible. Relying on the courage of public servants to refuse illegal orders is a weak defense against wrongdoing. The public examples of Robert Bork, who fired special prosecutor Archibald Cox during President Richard M. Nixon’s “Saturday Night Massacre,” or Trump Justice Department official Jeffrey Clark’s attempts to subvert the 2020 election remind us that there will always be someone willing to carry out presidential orders, no matter how odious.
As for the CIA, journalists and authors are fond of focusing on the agency’s past actions to claim it regularly engages in illegal actions for which there has been little to no accountability. Yet many generations of national security practitioners and thinkers have worked to ensure that this powerful secret agency operates squarely within the limits of U.S. law. Their efforts, sadly, could be all for nothing now.
