Retired Generals Say Prospect of Trump Immunity Is Nation’s ‘Greatest Threat’

Donald Trump is two weeks away from asking the Supreme Court to grant him immunity from prosecution for trying to overturn the 2020 election, a move that former military leaders call “the single greatest threat” the country has ever seen—and one that presidential scholars separately say runs the risk of violating the most severe concerns about a dictatorship from the nation’s Founding Fathers.

On Monday, 14 national security experts who once held leadership positions in the Army, Marine Corps, Navy, special forces, the White House, and even NATO joined together to warn the country’s most senior judges that the fate of the Republic lies in their hands.

Former President Trump is asking the Supreme Court to give him total immunity from criminal charges, claiming that executive authority allowed him to engage in his various efforts to flip the results of the last presidential election—a stance that would dismantle the investigation led by Department of Justice Special Counsel Jack Smith.

Retired generals, vice admirals, and various national security lawyers countered that idea in an amicus brief filed with the high court on Monday, with warnings that are as direct as they are stark.

The Unhinged Arguments the Supreme Court Is Fielding on Trump Immunity

“It is a proposition that would convert the presidency from the greatest protector of the nation to its single greatest threat,” they wrote. “Making a former president immune from criminal prosecution could make the presidency itself a profound threat to national security, as it would permit a president to use the great power of the office to further personal interests, such as securing reelection or attempting to avoid accountability for criminal abuse of power.”

Among the names signed on to the amicus brief are retired generals like Army Major Gen. John D. Altenburg, Marine Corps Gen. James E. Cartwright, and Gen. Joseph Votel, who once led U.S. Special Operations Command. Also on the list are retired Rear Admiral Donald J. Guter, former chief White House ethics lawyer Richard Painter, ex-NATO Deputy Secretary General Alexander Vershbow, and many others.

Trump is trying to remain untouchable by borrowing the DOJ legal concept that traditionally shields presidents from criminal prosecution when they operate “officially” within what’s called the “perimeter” of their duties.

But these national security experts went even further than the usual interpretation of government lawyers, cautioning that presidents operate in dangerous territory when they’re approaching the proverbial edge of their duties.

“As national security professionals, we emphatically reject the sweeping proposition that all U.S. presidents enjoy legal immunity from criminal prosecution to the ‘outer perimeter’ of their official duties. It is no exaggeration to say that this proposition is potentially the most dangerous that has ever been advanced in a court of law by any U.S. official,” they wrote.

Their legal filing goes beyond the warnings of three retired military leaders who—in a court brief that would have read like a parody a decade ago—recently told the Supreme Court that, “No—the president cannot order SEAL Team Six to assassinate his political rival and have the military carry out such an order.”

The Supreme Court is getting flooded with legal treatises from all angles—many others of them unhinged—in advance of the in-person oral arguments scheduled for April 25. The case will determine whether Trump will face a federal criminal trial in Washington before the presumptive Republican nominee appears on ballots nationwide in the November 2024 election.

As Trump fights off criminal charges in his quest to reclaim the White House, this landmark case has turned the Supreme Court building into the latest MAGA battleground—just across the street from the U.S. Capitol Building that was ground zero for the violent battle scenes that led to Trump’s indictment.

It’s Nuts That Trump Will Soon Have Classified National Security Intelligence Briefings Again

Monday’s amicus brief explored the danger in having the court bless Trump with sweeping immunity, describing how a lawless leader would “weaken the authority of the president, and throw confusion into the chain of command of the armed forces.”

But unlike other critiques of Trump’s attempt to assert king-like powers, this one focused squarely on national security concerns: predicting chaos if soldiers must answer to a man rendered untouchable after already exhibiting a history of misusing the Oval Office and an interest in employing the military to do so. (In the closing days of his administration, Trump entertained discussions about invoking martial law to remain in power and explicitly stated his intention “to be a dictator for one day” at the start of a new term.)

“Allowing a president to issue orders requiring subordinates to commit criminal acts or omissions would wreak havoc on the military chain of command and result in an erosion of confidence in the legality of presidential orders,” the amicus brief stated.

Claire Finkelstein, a national security law professor at the University of Pennsylvania who co-wrote the amicus brief, told The Daily Beast she thinks the Supreme Court must forcefully assert that any president who commits a crime—even while in office and operating under the guise of doing their official job—must ultimately face charges. And she warned of the catastrophic fallout that could follow even if the Supreme Court denies Trump total immunity but adopts some weaker version of qualified immunity that treats misdeeds by a president as somehow different than those by the average citizen.

She noted “how dangerous the logic of immunity is” and the way it grants a president with the very authority once decried by the American colonists who rebelled against the British king nearly 250 years ago.

If the Supreme Court tells Trump he can operate with impunity, Finkelstein expects him to employ government forces to sabotage any elections and impeachment proceedings—the two main methods to get rid of a corrupt American leader.

“A president who has full immunity can launch an attack on the means to hold him accountable,” she said. “Truly, the immunity issue is the thin edge of the wedge for our democracy. To have a president who is not answerable to the law means that neither of the two main methods for holding a president accountable will function. He could undermine impeachment or voting or any other aspect of our democratic governance in a nanosecond.”

In the coming weeks, justices will be asked to consider that very limitation of power as they parse the writings of Alexander Hamilton, James Madison, and John Jay—the nation’s first treasury secretary, fourth president, and first Supreme Court chief justice, respectively—who jointly wrote 85 essays known as “The Federalist Papers” promoting the ratification of the U.S. Constitution. Meanwhile, Trump’s defense lawyers have adopted an incredible interpretation of a single word in one essay, claiming that Hamilton somehow meant that a president must be politically convicted by the Senate or else can’t be indicted in court by a prosecutor—an interpretation at odds with some of the GOP senators who voted to acquit because they believed Trump’s misdeeds were a legal matter, not a political one.

Trump’s attorneys place terminal significance on a single word—“after”—when Hamilton wrote about the shame of impeachment and the punishment of criminal conviction.

“After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law,” the young statesman wrote in Federalist No. 65.

Trump’s team essentially argues that the Senate didn’t convict Trump for interfering in the 2020 election, so Smith can’t prosecute him.

However, according to five of the nation’s leading presidential scholars, there’s a general consensus among academics who have studied the nation’s founding ideals that Hamilton meant the complete opposite.

Allan Lichtman, a history professor at American University, was maddened that Trump’s lawyers would misconstrue Hamilton’s essay by ignoring the context of one essay—and the whole point of the collection of articles.

“There’s a real serious logical error being made,” he told The Daily Beast. “‘Removal by impeachment opens you to the normal processes of law’ does not logically mean ‘You’re not open to the regular process of law.’”

“It is crystal clear that they would be appalled by the idea that criminal acts by the president—once that president is out of office—couldn’t be punished by criminal law,” Lichtman said.

Some scholars noted that the whole point of the essay in question, Federalist No. 65, was to figure out which body of government was best positioned to impeach or convict the president. Hamilton decided on Congress rather than the Supreme Court because of the risk of unfairly subjecting a president to two identical trials on the same charges by the same judges—obviously implying that a criminal trial could follow impeachment proceedings, regardless of the outcome.

Other scholars cited Federalist No. 69, in which Hamilton assured that an American president “would stand upon no better ground than a governor of New York”—and importantly have “a total dissimilitude between him and a king” of Great Britain who is “sacred and inviolable.”

Willard Sterne Randall, a former investigative journalist who now teaches history at Champlain College in Vermont, called the case “a new test for the Constitution: what’s not there.” And he expressed grave concerns about what Trump might rally his armed MAGA supporters to do if he’s denied immunity, put on trial in Washington, D.C., and convicted before the election.

“Having the Northern courts prosecuting him gives a historical dimension that feels dangerous. There are people who wouldn’t mind fighting the Civil War again,” he told The Daily Beast.

Chris Edelson, an American University professor, pointed to Federalist No. 77, in which Hamilton tried to temper worries about a too-powerful president by noting there would be elections every four years and this person would be “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.”

Supreme Court Agrees to Hear Trump Immunity Arguments

“Hamilton was being very clear that in the U.S. there would be the rule of law. No one would be sacred. There’s no monarch. The president would be accountable,” Edelson said. “The threat that Trump poses—dodging accountability, returning to office, and becoming a dictator—his actions when he was president make clear what his ambitions are. He is the danger they worried about.”

“Donald Trump’s whole theory—‘I’m above that law, rules don’t apply to me, immunity’—all of that is completely antithetical to their thinking,” Edelson added. “Madison warns against tyranny and the concentration of power. Trump raises all of those concerns.”

Barbara A. Perry, who teaches about the American presidency at the University of Virginia, invoked Federalist No. 70 to note how Hamilton specifically opted for a single president rather than what she called a “troika.” That design ensured the American people could properly assign blame for ineptitude to a single person—and similarly hold that person accountable with criminal charges if need be.

Hamilton warned that “the plurality of the executive tends to deprive the people… the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.”

“They were constantly on the lookout for exactly what we see now: demagoguery, illegality, unconstitutionality. But I’m not sure they, in their wildest dreams about bad human nature, could have anticipated someone this bad,” Perry said.

Perry has a message for Supreme Court justices who are about to take a close look at the national security implications of granting Trump immunity—and what this question would have meant when the Federalist essays were published in 1787.

“For those conservatives on this court talking about original intent, it’s hard for me to comprehend why they’d ever go down the road of completely immunizing the president,” she said. “Why would our founders have broken away from a monarchy, where they felt unrepresented and abused by the authority of the sovereign, and want someone like Donald Trump abusing power, the law, and the Constitution in the presidency?”

Read more at The Daily Beast.

Get the Daily Beast's biggest scoops and scandals delivered right to your inbox. Sign up now.

Stay informed and gain unlimited access to the Daily Beast's unmatched reporting. Subscribe now.