Trump’s presidential immunity won’t protect the men and women who carry out his orders

​America reelected Donald Trump by a plurality of the popular vote, with a slim mandate for his policies. Among them, President-elect Trump vows a mass deportation program that requires National Guardsmen to detain migrants, and anticipates the use of active-duty units to suppress related civil unrest — law enforcement and corrections tasks for which few troops are trained. Trump also threatens to use the military in unspecified ways against civilian enemies, including elected officials over whom the armed services lack jurisdiction, and has previously discussed the military using unlawfully excessive force against migrants.

Furthermore, a draft executive order regarding “warrior boards” to recommend the purge of three- and four-star officers suggests Trump will relieve some senior officers and replace them with personal loyalists. The controversial nomination of young television personality Pete Hegseth suggests Trump expects a defense secretary indebted to him who’ll be inclined to rubber-stamp White House orders. Proposals to use recess appointments, and selectively waive the requirement that nominees face FBI background investigations, are causes for further concern regarding the character and judgment of potential sub-cabinet Pentagon appointees.

Trump intends for the Justice Department to operate under his political control, via attorney general nominee Pam Bondi and FBI nominee Kash Patel. So federal prosecution of servicemembers for following his orders is unlikely through January 20, 2029. But presidential immunity from subsequent prosecution for “official” yet criminal acts, newly set forth by the Supreme Court, applies only to the commander in chief. And the statute of limitations on most federal crimes is five years, extending beyond Trump’s remaining lawful term in office (although Trump also repeatedly raises the issue of an unconstitutional third term).

Under these troubling circumstances, subordinate uniformed personnel need to look out for their own legal interests.

Beyond the risk of federal prosecution lies the possibility of charges by local authorities under state law. In 1997, U.S. Marines on a counternarcotics operation in Texas killed a youth without clear justification. A local grand jury considered homicide charges before clearing the Marines. Service members using excessive force against migrants or protesters should expect scrutiny by Democratic prosecutors eager to oppose Trump’s policies and make examples of misconduct. Remember, no president can grant pardons or clemency for state crimes.

Service members may also face civil liability for constitutional violations. Citizens regularly pursue so-called Bivens claims against federal law enforcement officers who, acting under color of federal authority, violate their rights. It’s likely that courts would allow such suits to proceed against active-duty personnel taking on unfamiliar investigative and corrections tasks. Judgments for financial damages in these cases can be enforced against defendants’ pay and property.

Rank-and-file service members are more vulnerable than law enforcement personnel and senior military officers to litigation risk. Staff judge advocates, who provide legal advice to military personnel, ultimately represent the interests of the commanders evaluating them for promotion, not those of their units’ individual troops — their advice about the legality of their boss’s orders ought to be taken with a grain of salt by “Joe.” General and flag officers in the armed services usually have professional liability insurance, and more financial resources than their subordinates.

A new administration may well look differently upon Trump’s policies. For example, Barack Obama’s Justice Department criminally investigated CIA officers who followed George Bush’s reasonable orders, approved by his DOJ, regarding enhanced interrogation of high-value al-Qaeda detainees after 9/11. And the Pposse Ccomitatus Actstatute, for example, which generally forbids active-duty service members from conducting searches or seizures within the meaning of the Fourth Amendment inside the U.S., is a civilian criminal statute applying to military personnel.

A future Democratic administration may well look differently upon Trump’s policies. For example, Barack Obama’s Justice Department criminally investigated CIA officers who followed George Bush’s orders, approved by his DOJ, regarding enhanced interrogation of high-value al-Qaeda detainees after 9/11. And the Posse Comitatus Act, which generally prohibits federal troops from participating in civilian law enforcement inside the U.S., is a civilian criminal statute that applies to military personnel.

Meanwhile, good criminal defense counsel may charge well over $1,000 an hour, far beyond the means of enlisted personnel. No elite law firms will be inclined to represent those accused of committing crimes on behalf of the Trump administration. As with January 6, most prosecutors focus on easy-to-prove cases against working-class guys who commit violence, rather than complex conspiracy cases against university-educated peers who encourage others to commit such acts. As they say in the  military, it’s “different spanks for different ranks.”

Service members must refuse to obey — and indeed report — illegal orders, such as a request to commit a crime. But it’ll get complicated if Trump invokes facially lawful authorities under the Insurrection Act, Immigration and Nationality Act, or (less plausibly) Alien Enemies Act, for immoral or unwise reasons.

Service members should not be left holding the bag for their chain of command. As a retired Army Reserve colonel, this is the advice I’d offer: Ask commanders to put suspect orders in writing. Seek judge advocates’ written opinions. Record any objections in writing. Give copies of this correspondence to law enforcement, inspectors general and Congress. Seek pro bono counsel to ask courts to enjoin unlawful acts on your behalf.

Our men and women in uniform didn’t volunteer to hurt migrants, or American civilians, on behalf of any president. It’s not who we are and goes against the highest traditions of our armed services. In days soon to come, if faced with ethical and legal dilemmas, service members ought to remember the good advice of America’s first and best commander-in-chief, George Washington: “Labor to keep alive in your breast that little spark of celestial fire, called conscience.”

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