this post was submitted on 02 Jul 2024
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IANAL, but there is the presidential power to pardon. So the president could in theory give an illegal order (as long as it is an official act they have immunity) and promise a presidential pardon once the order is fulfilled (therefore extending immunity to the perpetrator). Meaning the president can entirely circumvent the UCMJ.
And those people would still face state charges because that's how that works. You can't get a presidential pardon for state crimes.
Can you face state charges for murder if you're already facing federal charges for the same killing (you crossed state lines)? That sounds like double jeopardy to me.
Yes. You can face state and federal charges separately. Double jeopardy is when they charge for the same crime twice in the same court (state or federal), after you've either been convicted or been acquitted.
Specifically they would have to have new evidence in order to charge you a second time in either federal or state court.
So do it in DC
The Criminal Division of the Superior Court of the District of Columbia is responsible for processing all local criminal matters including felony, misdemeanor, District of Columbia code violations and criminal traffic cases.
Ok yeah fair enough, that sounds reasonable. But to my knowledge the UMCJ is a federal law, not a state law, so how does that line of argument factor in there? You cited that as an example of checks and balances that would prevent people from following illegal orders, but it being a federal law still means the president could circumvent it with the official order plus pardon combo, at least if my understanding of this new supreme court ruling is correct.
Because (just like in NY with Trump, and specific charges) if a crime is committed within a state the state has the right to prosecute regardless of impeachment or federal charges. The UCMJ is technically federal law. But we're looking at three different aspects of lawful charges for persons who might commit a crime per the Presidents order. The president could absolutely pardon the persons involved. But only at the federal level. There's nothing stopping the state or states from prosecuting the same individual. It's not just one set of checks and balances is my point. The department of justice can also bring charges regardless of UCMJ tribunal (Court Material). Which is really where double jeopardy should kick in but doesn't for service members.
Additionally and most importantly actually, a court martial conviction for murder would result in a dishonorable discharge from the military. That can't be overturned by a presidential pardon. They would lose their benefits. Medical and so on. Pensions. It's a cost benefit analysis at that point. They don't just get to walk away no harm no foul cause presidential pardon.
All good points if true. However I will say that to my limited understanding a crime under a specific law having been pardoned, that same law can then not be used to prosecute this crime anymore. Meaning states would have to find a different (preferably state) law under which the same offence is punishable.
And that is all disregarding other issues like packed courts, republican controlled states, the vagueness of double-jeopardy in this regard, and the general chilling effect a presidential pardon would have on prosecutors to even press charges in the first place.
The loss of benefits is easily circumvented by promising a golden parachute along with the pardon, so I could still see a lot of fanatics doing the crime "for country and freedom" or whatever they tell themselves.
Overall this seems like a potentially dangerous erosion of checks and balances that is easily abused when put in the wrong hands. As the dissenting opinions in the ruling openly state.
I don't disagree with that in the grand scheme of things. But a presidential pardon can only be accepted under the understanding that the person who receives it is admitting by accepting it that they committed the crime. As such a service member with a dishonorable discharge would not have their benefits re-instated, for instance.
Yeah but like I said, if you promise some other form of compensation on the level or above what they lose in benefits, you will still find people willing to follow these illegal orders. Hell you could find people willing to follow illegal orders even before this ruling, but now that the presidents right to give illegal orders is explicitly enshrined in constitutional jurisprudence this pre-existing problem is much worse. I doubt those people will care about a dishonourable discharge, on the contrary it will make them martyrs to "the cause" and they will be worshipped for it. And it remains to be seen how all this would play out in court, I guess it's quite possible for the defence to argue that if the president has immunity for giving orders, their subordinates have immunity for following those orders.
At the point where you are offered some other form of compensation, I believe that would be considered a bribe, which is also illegal.
That it was offered is nigh impossible to prove if the offer is only made verbally though. And conversely, if they make the offer an "official act" they are immune again.