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Greg Sargent of the New Republic wrote a good article last week [ [link removed] ] about a memorandum lawyers in Donald Trump’s Justice Department have composed to justify his orders to murder seafarers in the Caribbean.
The secret Office of Legal Counsel memo, first described by the [ [link removed] ]New York Times [ [link removed] ], argues that these killings are legal insofar as Trump’s claim that we are in a state of war with “drug cartels” is itself legal. It then volunteers a legal defense for government officials or service members, in the event that they are one day prosecuted for murder: battlefield immunity.
This is less a loophole than a wormhole into an Kafkaesque nightmare-world, where anyone in the chain of command can dispose of whomever Trump claims to be an enemy combatant, and fear no legal consequences. The Supreme Court gave presidents immunity from prosecution for just this sort of abuse of power last year, and he’s attempting to radiate it downward through the bureaucracy to anyone who violates the law on his say so. It nullifies the obligation to disobey unlawful orders by stipulating that if the orders come from a president asserting a state of war, then they are lawful.
The only way to discourage compliance, as Trump seeks to bootstrap his legal immunity on to subordinates the government, is to appeal to the morals and self-interest of people who suspect their orders are illegal. As Sargent writes, “Are you really sure you want to trust Donald Trump, of all people, when he tells you that what he’s directing you to do is lawful and that you’ll be protected later as a result?”
I’ve written at length about the value of this kind of deterrence. Trump is untrustworthy, term limited, and old. Everyone tempted to participate in his schemes and conspiracies should be on notice that bygones won’t be bygones on the other side of this constitutional interregnum.
But specificity becomes critical when the bad deeds involve criminal activity, particularly criminal activity that stems from real government power, like military strikes. The combination of Trump’s lawlessness and the pardon power complicate the psychology of deterrence in a perverse way. His power and poor character create an artificial penumbra of impunity covering everyone who chooses to believe he’ll protect them. Deterrence thus requires more than warning of future prosecution. The people committing these murders need to ask themselves: Can I depend on a faithless man like Trump to provide me with an actual pardon, not just a wink and a gibberish memorandum written by unethical lawyers? And what other forms of accountability might I face, short of prosecution, that Trump can’t protect me from?
These are the questions Democrats need to seed widely.
CAUGHT WITH VANCE DOWN
For some people and institutions, simple warnings will suffice. Foreign leaders who participate in acts of corruption or subversion with Trump will get the message if Democrats simply remind them that their relationships with the U.S. government will suffer badly in the long run if they align themselves with Trump and the GOP, rather than the American state.
The law firms and universities that Trump cowed earlier this year have suffered reputationally, even if they’ve painted inside the lines of criminal law. Disney and ABC learned the hard way, and it set an example that other broadcasters will hopefully follow.
But the Trump administration, and the near periphery of corrupt actors trading favors and contracts and inside information, is full of people who are behaving as if they assume Trump will pardon them preemptively before ceding power.
All of these people need to think twice. They need reminders along these lines:...

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