It was May 2, 2011 when Navy Seals fatally shot Osama bin Laden on the order of their commander in Chief, President Barack Obama. Every American who was alive on September 11, 2001 knows why bin Laden was put to death. There were also the “collateral damage” deaths of bin Laden guards and family members.
Article 2 Section 2 of the U.S. Constitution designates the President as Commander in Chief of the Army, Navy, and activated State Militias. The Air Force and National Guard did not exist at the time of the drafting. So President Obama’s authority to deploy Navy Seals is clear enough. But where is his authority to order an execution?
If I had stumbled across Osama bin Laden post-9/11 and had I taken such opportunity to kill him, I would have acted with good moral authority but no legal authority. I would have been at risk of a prosecution for murder. So how is it any different for the President? Whether it is from legislation like the “War Powers Act” at 50 U.S.C. ch. 33 or Article 2 of the Constitution, the President has authority beyond that of the common citizen. The point here is that criminal defendant Donald Trump’s claim of “official acts” Presidential immunity has some underlying legitimacy. The bad news for Trump is that his prosecutions are for behavior that cannot be reasonably described as official acts. In practical terms, the current lack of decision as to what constitutes an official act may delay Trump’s cases outside of New York until after November 5, 2024.
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