On May 21st, 1969, police found the body of 19-year-old Alex Rackley on a riverbank in Middlefield, CT. Rackley was a member of the Black Panther Party. Alex Rackley was murdered by fellow Panthers who suspected him of being an informant.
The state charged Bobby Seale, founder and national chairman of the Black Panther Party, and Ericka Huggins, head of the Party’s New Haven chapter, with conspiracy to kidnap and murder Rackley; the prosecutors sought the death penalty.
On May Day, 1970, some 15,000 Panther Party members and their supporters came to New Haven to protest the trial. After five days of deliberation, the jury deadlocked and the case was declared a mistrial.
DONALD J. TRUMP,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
————
On Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
————
BRIEF OF RETIRED FOUR-STAR ADMIRALS
AND GENERALS, AND FORMER SECRETARIES
OF THE U.S. ARMY, NAVY, AND AIR FORCE
AS AMICI CURIAE I
ARGUMENT
I. Petitioner’s claimed immunity would undermine our nation’s foundational commitment to civilian control of the military. The Founders enshrined in our Constitution the principle that the military must be apolitical and subject to civilian control to ensure the military serves and does not threaten civil society. This commitment to civilian control bound by the rule of law was integral to the Framers’ design and is equally important today. Granting the President immunity from criminal prosecution would permit the Commander-in-Chief wide latitude to abuse his powers over the military, upsetting the foundational notion of civilian control subject to the rule of law and the delicate dynamics that shape civil-military relations.
The early history of our Republic illustrates the foundational nature of the principle of civilian control of the military. The Founders were well aware of the tyrannical threat that unchecked military power and an “unlimited executive power” posed to individual rights and a democratic polity. (“The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”). For example, they rebelled against the Quartering Act of 1765, which required American colonists to house and feed British soldiers as part of an authoritarian
response to the Boston Tea Party.
And the Declaration of Independence expressly accused King George III of “rendering the Military independent of and superior to the Civil Power.” The Declaration of Independence. (Americans perceived the British Army to be separated from the society it served and to be more a tool for suppressing internal dissent than for providing security against external threats.") threats.”).
Against this backdrop, the Founders designed our constitutional system such that the military serves civil society, not vice versa. Article 2, Section 2 of the Constitution establishes civilian control of the armed forces by subjecting the military to the control of the President—an elected civilian offcial—who serves as Commander-in-Chief. Moreover, Congress—a democratically elected civilian body—has the authority to declare war, appropriate money for the military, and create rules and regulations for the armed forces. During the Founding Era, military and civilian
leaders alike worked to establish and engrain the norms between the American military and the civilian leadership to which it is subordinate. As commander of the Continental Army, General George Washington firmly appealed to military officers that they must respect Congress’s authority, as doing otherwise would “open the food Gates of Civil Discord.” General Washington also repeatedly refused calls to convert his status as a military leader into that of an authoritarian leader of the nascent American confederacy.
2 Petitioner’s theory of presidential immunity threatens to subvert the careful balance between the executive and legislative branches struck in the Constitution. For example, if emboldened by absolute immunity, the President might unsuccessfully seek authorization from Congress to undertake a certain action and then attempt to have the military carry out that action even though Congress rejected it. Moreover, our Constitution directs the people’s elected representatives in Congress to enact criminal laws that the executive is tasked with enforcing; allowing the President to violate those laws with impunity fundamentally
distorts this constitutional allocation of power.
It may be proper constantly and strongly to impress upon the Army [of militia sent against the 1794 Whiskey Rebellion insurrectionists] that they are mere agents of Civil power.”). Other Founders echoed similar views. See, e.g., The Federalist No. 46. In the military. Congress has enacted legislation creating numerous civilian positions in the executive branch that exercise control over the armed forces, subject to the ultimate authority of the President. For example, pursuant to statute, the President appoints a Secretary of Defense “from civilian life” who must have at least seven years of separation from active military service.
The Secretary of Defense, alongside his secretariat and service secretaries, in turn leads the Department of Defense, gives orders to military leaders, and ensures the military implements the Commander-in-Chief’s national security strategy and executes his orders. Additionally, federal A waiver of this separation requirement must be passed by both Houses of Congress and signed by the President. law reinforces the boundary between military and civilian life. (prohibiting military officers from holding elected office or civilian presidential appointments).
Civilian control of the U.S. military ensures that the armed forces are subordinate to the direction and control of a President who is accountable to the people. The President exercises his authority through the civilians he appoints to lead the Department of Defense. Though career military leaders typically have far more experience in military affairs than the Department’s civilian leaders, military leaders do not arrogate to themselves the authority of civilian leadership. They give their best military advice but leave the ultimate decisions to the President and his appointees. Ensuring that this system works, however, requires more than just laws. It also requires deep trust between the civilian and military leaders that they fundamentally share common goals: to defend the nation and uphold the Constitution and the laws of the United States. Indeed, at its core, civilian control of the military requires mutual trust and respect for the different roles that civilian and military leaders are called to fll in our Constitutional order. In particular, our system requires trust in the Commander-in-Chief as a source of legal and moral authority to lead the men and women of the armed forces, as at his orders they place their lives in peril to serve their country.
