Hegseth said US military should refuse ‘unlawful’ Trump orders in unearthed 2016 interview

​

“US Defense Secretary Pete Hegseth, who previously stated that US service members should refuse unlawful orders, is now defending the Trump administration’s strikes on alleged drug boats in the Caribbean. Critics argue these strikes are illegal and extrajudicial killings, while the administration justifies them by declaring the groups involved as “narco-terrorists.” Hegseth, who previously criticized Trump’s comments on following illegal orders, now argues that Trump has the power to take military action as he sees fit.

​

Defense secretary’s comments recirculating amid dispute over US strikes on alleged drug boats in Caribbean

Edward Helmore

Pete Hegseth at the state department in Washington DC on Monday. Photograph: Mark Schiefelbein/AP

The US defense secretary, Pete Hegseth, stated repeatedly in 2016 on Fox News that US service members should refuse “unlawful” orders from a potential president Trump – exactly the position he called “despicable” when Democratic lawmakers said it last month.

The debate about whether US soldiers should refuse illegal orders is now at the center of a fiery political dispute over the US killings of alleged drug traffickers in boats off the coast of Venezuela and Columbia.

In video unearthed by CNN from March of 2016, when Donald Trump was a Republican presidential candidate, Hegseth responded to Trump’s comments in a debate by clarifying that service members did, in fact, have a duty to refuse any illegal orders.

“You’re not just gonna follow that order if it’s unlawful,” Hegseth, then a Fox News contributor, said in an appearance on the show Fox & Friends, where he would eventually become a host.

He repeated similar comments in a Fox Business appearance later that month.

As a candidate in 2016, Trump had vowed that US military personnel would carry out orders including killing the families of terrorists and reviving banned forms of torture if he became president.

“The military’s not gonna follow illegal orders,” Hegseth said of Trump’s claim, which the candidate later walked back.

Hegseth is now embroiled in a controversy over a second strike on an alleged drug boat on 2 September, which killed two survivors of a strike less than an hour earlier. The administration’s strikes in the Caribbean and eastern Pacific now number 20 and are reported to have claimed the lives of more than 80 people, who it says without offering evidence are smuggling narcotics.

Critics have described the attacks as illegal and extrajudicial killings, noting that the crime of drug-smuggling – even if true – is not subject to execution without trial. The administration has justified its attacks by declaring various groups as “narco-terrorists”.

In recent weeks, Hegseth has criticized Democrats for expressing concerns similar to those he expressed before Trump was elected.

Last month the Arizona senator Mark Kelly and five other Democrats with service records posted a video that encouraged military personnel to disobey “illegal orders” from the Trump administration and warned of internal “threats to our constitution”.

The Pentagon announced it was launching an investigation into Kelly after Trump protested that the senator and the other lawmakers “should be in jail right now” and suggesting they might have engaged in “seditious behavior, punishable by death”.

Hegseth himself has accused the Democratic lawmakers of spreading “despicable, reckless, and false” information. On Saturday he compared suspected drug smugglers to al-Qaida terrorists. “If you’re working for a designated terrorist organization and you bring drugs to this country in a boat, we will find you and we will sink you. Let there be no doubt about it,” Hegseth said at the Ronald Reagan presidential library in Simi valley, California.

Sign up to This Week in Trumpland

A deep dive into the policies, controversies and oddities surrounding the Trump administration

Privacy Notice: Newsletters may contain information about charities, online ads, and content funded by outside parties. If you do not have an account, we will create a guest account for you ontheguardian.com to send you this newsletter. You can complete full registration at any time. For more information about how we use your data see our Privacy Policy. We use Google reCaptcha to protect our website and the Google Privacy Policy and Terms of Service apply.

He further argued that Trump had the power to take military action “as he sees fit” and he dismissed concerns that the strikes violate international law. “President Trump can and will take decisive military action as he sees fit to defend our nation’s interests. Let no country on Earth doubt that for a moment,” he said.

In 2016, however, he argued that service members could face criminal consequences for carrying out illegal commands, and said the military were obliged to refuse them.

“Here’s the problem with Trump,” Hegseth told the Megyn Kelly show on Fox after the debate in which Trump made the comments. “He says: ‘Go ahead and kill the family. Go ahead and torture. Go ahead and go further than waterboarding.’ What happens when people follow those orders, or don’t follow them? It’s not clear that Donald Trump will have their back.

“Donald Trump is oftentimes about Donald Trump,” he said, adding: ““If you’re not changing the law, and you’re just saying it, you create even more ambiguity.”

The White House spokesperson Anna Kelly in a statement to CNN repeated the administration’s position that the Democrat lawmakers who issued the video “sowed doubt in a clear chain of command, which is reckless, dangerous, and deeply irresponsible for an elected official”, adding that “the military already has clear procedures for handling unlawful orders, but seditious Democrats injected ambiguity”.

Hegseth made the same argument at an event in April 2016, as reported last week, telling the Liberty Forum of Silicon Valley that the US military “won’t follow unlawful orders from their commander in chief”. He added that refusing illegal commands was a part of the military’s obligation and ethical standards.

Last month, he called the Democrat lawmakers who made that argument the “Seditious Six”.

Opinion | Overmatched: Why the U.S. Military Must Reinvent Itself - The New York Times

Opinion | Overmatched: Why the U.S. Military Must Reinvent Itself

"By The Editorial Board The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

America’s military has defended 
the free world for 80 years.

Rivals know this and are 
building to defeat us.

Opinion

The Editorial Board

OVERMATCHED

Why the U.S. Military Needs
to Reinvent Itself

President Xi Jinping of China has ordered his armed forces to be ready to seize Taiwan by 2027. Though the United States maintains a policy of strategic ambiguity on how it would respond to an invasion, Republican and Democratic presidents alike have said that America would defend the island nation. The Pentagon has produced a classified, multiyear assessment that shows how such a conflict would play out: the Overmatch brief.

The report is a comprehensive review of U.S. military power prepared by the Pentagon’s Office of Net Assessment and delivered most recently to top White House officials in the last year. It catalogs China’s ability to destroy American fighter planes, large ships and satellites, and identifies the U.S. military’s supply chain choke points. Its details have not been previously reported.

The picture it paints is consistent and disturbing. Pete Hegseth, the secretary of defense, said last November that in the Pentagon’s war games against China, “we lose every time.” When a senior Biden national security official received the Overmatch brief in 2021, he turned pale as he realized that “every trick we had up our sleeve, the Chinese had redundancy after redundancy,” according to one official who was present.

The assessment shows something more worrying than the potential outcome of a war over Taiwan. It shows the Pentagon’s overreliance on expensive, vulnerable weapons as adversaries field cheap, technologically advanced ones. And it traces a decades-long decline in America’s ability to win a long war with a major power.

War games can be wrong; analysts sometimes overstate adversaries’ abilities. Yet this larger point should not be ignored. Nearly four decades after victory in the Cold War, the U.S. military is ill prepared for today’s global threats and revolutionary technologies.

This is the first installment in a series from the editorial board on why the U.S. military needs to reinvent itself.

It is an ancient and familiar pattern. Despite ample warnings, military and political leaders trained in one set of assumptions, tactics and weapons fail to adapt to change. Whether it was the French army in 1940, stuck behind its defensive Maginot Line, or Russian armored formations in Ukraine in 2022, decimated by Javelin missiles, the result is devastating for the side that will not discard old concepts, adopt new weapons or rethink its way of war.

That’s where the United States risks finding itself. The Trump administration wants to increase defense spending in 2026 to more than $1 trillion. Much of that money will be squandered on capabilities that do more to magnify our weaknesses than to sharpen our strengths.

The global consequences could be dire. The United States has not always used its military effectively or for just causes. Yet a strong America has been crucial to a world in which freedom and prosperity are far more common than at nearly any other point in human history. Western Europe, Japan and South Korea are all affluent democracies today, thanks in part to American might. A world in which a totalitarian China achievesmilitary superiority in Asia and Russia feels free to menace Europe would make Americans poorer and threaten democracies everywhere. It is a prospect we should act resolutely to prevent.

This is the first of a series of editorials examining what’s gone wrong with the U.S. military — technologically, bureaucratically, culturally, politically and strategically — and how we can create a relevant and effective force that can deter wars whenever possible and win them wherever necessary.

Sources: Congressional Research Service; U.S. Department of Defense

Note: Missile counts are midpoint estimates for the People's Liberation Army’s rocket force. Locations of military bases with U.S. forces are shown as of 2023-24, based on C.R.S. analyses of unclassified U.S. government documentation.

The new reality has come into focus in many places, particularly in Ukraine since Russia invaded in 2022. Inventive Ukrainian forces neutralized the once formidable Russian Black Sea Fleet using small, remote-controlled boats loaded with explosives. Many of Russia’s most valuable heavy bomber aircraft were badly damaged or destroyed in June by small Ukrainian drones, sneaked into the country and launched against bases as far away as Siberia. In eastern Ukraine, drones that typically cost a few hundred dollars to make, and which Ukraine and Russia now produce by the millions, have transformed the battlefield into “a mash-up of ‘All Quiet on the Western Front’ and ‘Blade Runner,’” as the national security writer Max Boot has observed.

To see where American defense dollars go, consider the U.S.S. Gerald R. Ford, America’s latest aircraft carrier, which deployed for the first time in 2022 after more than a decade of construction and delays. The ship incorporates new technologies, including advanced nuclear reactors and electromagnetic catapults for launching aircraft, which make it more efficient than the Nimitz-class aircraft carriers it is intended to replace. The price tag: an estimated $13 billion. That figure is for a single ship. It does not include the billions of dollars worth of military aircraft carried by the Ford and the escort ships needed to defend it.

Such formidable firepower is effective if you want to go to war with a relatively poor, weak country like, say, Venezuela. Yet the Ford, which is currently deployed in the Caribbean, is fatally vulnerable to new forms of attack. China in recent years has amassed an arsenal of around 600 hypersonic weapons, which can travel at five times the speed of sound and are difficult to intercept. Other countries possess quiet diesel-electric submarines capable of sinking American carriers.

Small robotic weapons are changing warfare, threatening the expensive, hulking equipment of the past.

In war games like those depicted in the Overmatch brief, ships like the Ford are often destroyed. Still, the Navy plans to build at least nine additional Ford-class carriers in the coming decades. So far, the United States has yet to deploy a single hypersonic missile.

Or take the possibility of a Russian attack on a NATO member state such as Estonia. Evidence suggests that Moscow may already be testing ways to do this, including by cutting the undersea cables on which NATO forces depend. And Russia is learning fast in the laboratory of war in Ukraine. Earlier this year, Kyiv’s forces captured a Russian drone made of commercially available parts that can navigate autonomously to a target — akin to an off-the-shelf cruise missile.

Nor is it just our allies that are at risk. China has installed malware in the computer networks that control power grids, communications systems and water supplies for American military bases. The advanced cyber campaign, carried out by the state-sponsored hacking group known as Volt Typhoon, threatens the military’s ability to move weapons and forces in the event of a crisis in the Pacific, and could affect civilians as well. America’s cybersecurity officials have struggled to find and remove the malware.

Why have successive administrations, Republican and Democratic, persisted in investing in the old way of war?

One reason is inertia in Congress and the Pentagon. The channels through which funds flow to weapons systems are deep and difficult to reroute. An entrenched oligopoly of five large defense contractors, down from 51 in the early 1990s, has an interest in selling the Pentagon ever-costlier evolutions of the same ships, planes and missiles.

America’s newest fighter jet, the F-35, required about 20 years of development and testing before the Pentagon approved full-scale production.

Another factor is military culture. Senior officers tend to be wedded to the technologies and tactics in which they made their careers. When Gen. David H. Berger, who was then the commandant of the Marines, decided in 2020 to get rid of the Corps’ tanks (which are difficult to transport and maintain) for the sake of creating a lighter, more agile force that could better counter China, he had to overcome intense institutional resistance. General Berger was right. The war in Ukraine demonstrated how vulnerable tanks have become.

There is also a conceptual failure: the idea that more sophisticated is always better. For decades the American military has relied on systems that are bespoke, complex and wildly expensive.

That made some sense back when our primary adversary, the Soviet Union, pursued a similar approach, allowing the West to spend it into the ground. The trouble with highly engineered and expensive weapons is that they are all but impossible to produce rapidly or purchase in large numbers. The Army wants to field its own small drones — not for a few hundred dollars per unit, as in Ukraine, but a more sophisticated version of the same weapon for tens of thousands of dollars. Unsurprisingly, the more complex version takes much longer to produce.

Traditional weapons — such as artillery shells, ships and aircraft — will still be crucial to future wars, but the U.S. defense industry has lost the ability to produce them at scale and speed. In the event of a war with China, the United States would rapidly run out of essential munitions, as Jake Sullivan, the national security adviser in the Biden administration, has warned. The Pentagon reportedly expended about one quarter of its overall stockpile of high-altitude missile interceptors helping to defend Israel against Iran’s ballistic missiles earlier this year. And that was in a war that lasted just 12 days. Three years into the war in Ukraine, the United States can’t produce enough Patriot missiles to meet Kyiv’s demand.

Wars in Ukraine and the Middle East rapidly depleted U.S. stockpiles of munitions, alarming Pentagon strategists.

The American military has resisted change for decades. The Pentagon has not had a strong secretary of defense willing to impose tough choices since Robert M. Gates, who served both George W. Bush and Barack Obama, left the office in 2011. Former Secretary of Defense Ashton B. Carter, an early recipient of the Overmatch brief, instituted multiple pilot projects and experiments in service of reform at the Pentagon, to limited effect. John McCain spent years raising the alarm on Capitol Hill, only to see Congress continue its support for outdated strategies.

There are some signs that the current administration may be willing to change. The Army has canceled the unsafe and unreliable M10 Booker light tank and other problematic programs. The White House is pushing for an overhaul of the way it buys weapons. But Mr. Hegseth has mainly presided over management chaos, officer purges and intelligence leaks that, in a normal administration, would have forced his resignation. President Trump’s use of the armed forces for domestic deployments and illegal antidrug missions is not the kind of change we need.

Transformation is a long-term endeavor. The chaotic first months of Mr. Trump’s second term have shown the dangers of misusing the military. They also have distracted from the urgency of reform. The strategic challenges the United States faces — among them a rising China, a revanchist Russia and A.I.-generated cyber threats and bio threats — will outlast this administration. While none can be defeated by force alone, they still require credible U.S. military power as a backstop to international order and the security of the free world.

The Trump administration says it wants to shake up the way the military buys weapons.

In the short term, the transformation of the American military may require additional spending, primarily to rebuild our industrial base. As a share of the economy, defense spending today — about 3.4 percent of G.D.P. — remains near its lowest level in more than 80 years, even after Mr. Trump’s recent increases.

A more secure world will almost certainly require more military commitment from allies like Canada, Japan and Europe, which have long relied on American taxpayers to bankroll their protection. China’s industrial capacity can only be met by pooling the resources of allies and partners around the world to balance and contain Beijing’s increasing influence.

Ultimately, a stronger U.S. national security depends less on enormous new budgets than on wiser investments. Spending heavily on traditional symbols of might risks shortchanging the true sources of American strength: relentless innovation, rapid adaptability and a willingness to discard old assumptions.

To be clear: The United States needs a stronger military primarily to deter future wars, not to start them. As we rebuild our military, we must pursue diplomacy with our adversaries. At the same time, we need to prepare for the worst. Deterring war is the first goal of any successful strategy to avoid protracted conflict, and we need to address our weaknesses before enemies look to exploit them.

Mr. Trump and his administration have received the latest warnings of the Overmatch brief. The need for change is urgent. The question is whether we will do so in time.

Illustration by Justin Metz. Photo credits: John Clark/Associated Press; Finbarr O’Reilly for The New York Times; Anne Rearick for The New York Times; Ammar Awad/Reuters; Evan Vucci/Associated Press. 

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom."

Opinion | Overmatched: Why the U.S. Military Must Reinvent Itself - The New York Times

Opinion | The Supreme Court Is Helping Trump Keep His Secrets - The New York Times

The Supreme Court Is Helping Trump Keep His Secrets

Dec. 7, 2025

Sharmila Banerjee

By Jeffrey Toobin

"Mr. Toobin is a contributing Opinion writer and the author of “The Pardon: The Politics of Presidential Mercy.”

President Trump’s recent pardons of a disgraced foreign leader, a crypto king and several white-collar criminals are among the defining acts of the first year of his second term, and they all raise the same fundamental question: Why did these individuals, of all people, deserve pardons?

By modern standards, the Trump administration has been unusually opaque. It’s a mystery how the Trump family’s finances influence White House decisions. Outside advisers like Elon Musk and Jared Kushner come and go without revealing their personal stakes in the decisions they influence. But the final nature of pardon decisions make the stories behind them especially important.

The quiescent Republican majorities in the House and Senate have shown almost no inclination to examine the operations of the White House under Mr. Trump, but Democratic control of either body following the midterm elections would surely lead to greater scrutiny, including of pardons.

More than almost any other decisions, pardons tell us who and what really matters to presidents — and we all have an interest in finding out why. Yet, thanks to the Supreme Court’s decision in Trump v. United States, that information is likely to remain forever off limits to investigators.

Chief Justice John Roberts’s opinion for a 6-to-3 majority is best known for its determination that presidents may not be criminally prosecuted for “official” acts committed while in office. But the opinion goes a great deal farther. In a crucial footnote, the chief justice said that presidents cannot even be investigated for their exercise of official powers. A prosecutor may not “admit testimony or private records of the president or his advisers probing the official act itself,” the opinion states. “Allowing that sort of evidence would invite the jury to inspect the president’s motivations for his official actions and to second-guess their propriety.” Pardons are certainly “official actions,” as they are specifically authorized as a presidential power in Article II of the Constitution.

The Trump decision is premised on the idea that presidents need the freedom to deliberate with their advisers without worrying that those consultations will ever become public. That’s a dubious rationale, which seals off too much important information from scrutiny, but it’s why the Trump precedent, which addresses what information may be obtained in a grand jury investigation, would apply to congressional inquiries as well.

The need for some outside examination of the president’s deliberations is demonstrated by Mr. Trump’s pardon this week of Juan Orlando Hernández, a former president of Honduras, who was released just months into his 45-year federal prison sentence. Mr. Trump pardoned him following his conviction for engaging in a conspiracy to protect drug traffickers in his country and to import more than 400 tons of cocaine into the United States. Why pardon Mr. Hernández when the president is now threateningmilitary action to overthrow Nicolás Maduro, the president of Venezuela — and blowing suspected drug smugglers out of the ocean — for the same crimes?

Do the career prosecutors who tried the case believe that it was a “Biden setup” as Mr. Trump said it was? Is this pardon consistent with American national security and diplomatic interests? What did the State Department advise? Does freeing a major narcotics trafficker enhance public safety in the United States? Does the Justice Department agree with Mr. Trump’s claim that the case should never have been brought? Answering those questions would not implicate any legitimate interests of the executive branch.

The president’s pardon power is an aberration in our constitutional system of checks and balances; neither Congress nor the courts may overrule or interfere with this executive prerogative. Still, there is a rich history of congressional oversight of “the president’s motivations for his official actions” when it comes to pardons. In 1974, a House subcommittee investigated Gerald Ford’s pardon of Richard Nixon, and Mr. Ford chose to become the first sitting president to provide sworn testimony in a congressional proceeding. He also answered the questions of the members of the subcommittee.

In 2001, both House and Senate committees investigated Bill Clinton’s pardon of the fugitive financier Marc Rich. Mr. Clinton did not testify, but he waived any objections to his aides responding to the committees’ inquiries. As with most congressional investigations, these pardon inquiries did not produce definitive answers, but they at least gave the issues the public airing that they deserved.

Notably, the focus of these previous congressional investigations was not whether the presidents had the right to grant the pardons — that was undisputed — but whether the pardons were part of a deal or a quid pro quo. In other words, both the 1974 and 2001 investigations consisted almost entirely of “testimony or private records of the president or his advisers probing the official act itself,” and that is what the Supreme Court says a grand jury, and presumably Congress, can no longer examine. (The quid pro quo question also arises with the president’s just-announced plan to pardon Henry Cuellar, a conservative Democratic congressman who was awaiting trial for bribery. Was this pardon a gesture of mercy — or a deal in exchange for support from a closely divided House of Representatives?)

It’s not just the Hernández pardon that cries out for greater public scrutiny. Mr. Trump pardoned Changpeng Zhao, the billionaire founder of the crypto firm Binance, who pleaded guilty to money laundering. Mr. Trump also pardoned Ross Ulbricht, the founder of the dark-web narcotics marketplace Silk Road, who was serving a life sentence for narcotics conspiracy and money laundering. Both Mr. Zhao and Mr. Ulbricht are leading figures in the crypto world, where the Trump family now has major investments and stands to benefit from the normalization of crypto misconduct. Who lobbied for the pardons of these two men — and why did Mr. Trump grant them? Who stands to benefit beyond the pardon recipients themselves?

For decades, the Department of Justice has issued guidelines for applicants for clemency. (That comes in two forms: A pardon wipes away all legal effects of a conviction; a commutation simply allows a recipient to leave prison.) The basic requirements are that applicants are supposed to complete their sentences, wait five years to apply, show “acceptance of responsibility” and maintain “good conduct.” Presidents are not obliged to follow these rules — President Biden did not, for example, when he pardoned his son, Hunter — but Mr. Trump has ignored both their letter and spirit.

He has granted clemency to more than a dozen major white-collar criminals, none of whom finished their sentences or accepted responsibility for their criminal conduct. He issued a commutation to a former investment manager, David Gentile, who was days into a seven-year sentence for scheming to defraud around 10,000 investors, and pardoned Paul Walczak, a nursing home executive who was sentenced to 18 months and ordered to pay nearly $4.4 million in restitution for tax crimes. Mr. Trump granted Mr. Walczak’s pardon three weeks after his mother, a major contributor to Republican candidates, attended a $1 million-per-person fund-raising dinner at Mar-a-Lago. The pardon also wiped out the order for Mr. Walczak to make restitution. According to a report issued in June by the Democratic staff of the House Judiciary Committee, Mr. Trump’s pardons at that point had already deprived victims of approximately $1.3 billion in restitution and fines owed to them.

A Congress that was even modestly attentive to the rule of law would surely want to know the circumstances surrounding these, and other, grants of clemency as well as their aftermath. (Recipients of Mr. Trump’s most notorious pardons, to the roughly 1,600 rioters at the Capitol on Jan. 6, 2021, have since been accused or convicted of such crimes as sexual assault, sexual abuse of a child, killing someone while driving under the influence and home invasion, among many others.) Faced with inquiries from congressional investigators about anything relating to pardons, the Trump administration can be expected to cite the language in the Trump case and ask the courts, including the Supreme Court, to approve its refusal to comply.

In a way, this would not be so different from what happened in the last two years of Mr. Trump’s first term, when a Democratic House sought to engage in genuine oversight by subpoenaing White House aides. Trump lawyers fought these subpoenas in court, drawing out the process until Mr. Trump’s term ended, even though House investigators won the most important of the cases that were resolved.

The president’s lawyers can be expected to challenge the attempts at oversight once again, about pardons and everything else, but this time the law will be on their side.

Jeffrey Toobin is a former assistant U.S. attorney who writes about the intersection of law and politics. He is the author of “The Nine: Inside the Secret World of the Supreme Court,” “The Pardon: The Politics of Presidential Mercy” and other books."

Opinion | The Supreme Court Is Helping Trump Keep His Secrets - The New York Times

Must the Military Disobey Unlawful Orders? Pam Bondi Has Said Yes. - The New York Times

Must the Military Disobey Unlawful Orders? Pam Bondi Has Said Yes.

"As a lawyer for a conservative think tank, Ms. Bondi, now the attorney general, filed a Supreme Court brief last year saying service members who followed such orders were committing crimes.

Dec. 8, 2025Updated 8:04 a.m. ET

Attorney General Pam Bondi and Secretary of Defense Pete Hegseth at the White House last month.Eric Lee for The New York Times

When six Democratic lawmakers issued a video last month telling members of the military that they must refuse unlawful orders, President Trump said they had committed “SEDITIOUS BEHAVIOR, punishable by DEATH!”

But Pam Bondi, the attorney general, said the same thing last year in a friend-of-the-court brief in the Supreme Court as a lawyer for the America First Policy Institute, a conservative think tank that represented three former military leaders.

“Military officers are required not to carry out unlawful orders,” she wrote.

She elaborated: “The military would not carry out a patently unlawful order from the president to kill nonmilitary targets. Indeed, service members are required not to do so.”

The brief was filed in support of Mr. Trump, who was asking the Supreme Court to grant him immunity from prosecution on charges of trying to subvert the 2020 election. It was, more specifically, an effort to address a statement by one of Mr. Trump’s private lawyers, D. John Sauer, now the solicitor general, at an appeals court argument in January 2024.

“Could a president who ordered SEAL team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?” Judge Florence Y. Pan asked Mr. Sauer.

Mr. Sauer said no. That answer seemed to hurt his case, and Ms. Bondi tried to limit its blast radius in her brief by saying that the hypothetical was unrealistic because military officers would never comply with such an order.

“A president cannot order an elite military unit to kill a political rival, and the members of the military are required not to carry out such an unlawful order,” she wrote. “It would be a crime to do so.”

Mr. Sauer briefly addressed the point in his Supreme Court argument.

The Uniform Code of Military Justice, Mr. Sauer said, “prohibits the military from following a plainfully unlawful act.”

Justice Samuel A. Alito Jr. understood the significance of the argument.

“I don’t want to slander SEAL Team 6,” he said, to laughter. “Because they’re — no, seriously, they’re honorable. They’re honorable officers, and they are bound by the Uniform Code of Military Justice not to obey unlawful orders.”

Mr. Trump won his case, obtaining substantial immunity. The six Democratic lawmakers have been denounced, investigated and threatened with death.

The F.B.I. has sought to question the lawmakers, all of whom served in the military or the intelligence service. Defense Secretary Pete Hegseth has opened an investigation into whether Senator Mark Kelly, Democrat of Arizona, committed a military crime by saying in the video what Ms. Bondi, Mr. Sauer and Justice Alito had said.

The question of whether members of the military must refuse illegal orders is particularly salient these days, of course, in light of the strikes on boats said to be smuggling drugs, which many legal experts say amount to extrajudicial killings.

Two other briefs in the immunity case, these opposing Mr. Trump, also addressed unlawful orders.

They agreed that members of the military must refuse to obey them. But they said presidents emboldened by the knowledge that they were immune from prosecution would put grave and dangerous pressure on those they commanded.

A brief from retired admirals and generals, along with former secretaries of the Army, Navy and Air Force, said that “the duty to disobey would be an unacceptably thin fail-safe against a president who was intent on flouting and who was permitted to flout the law without the possibility of criminal prosecution.”

A third brief, from national security and military experts, said that presidential immunity coupled with the power to pardon crimes would be a recipe for wholesale lawlessness.

“For example, in the SEAL Team 6 assassination scenario, the team members would not need to fear the consequences of committing murder,” the brief said, “if the order to commit the murder were coupled with the promise of a pardon.”

In a Supreme Court brief in the immunity case, Mr. Sauer said the criticism of his exchange about SEAL Team 6 before a three-judge appeals court panel had been untethered from reality.

“The panel fretted about lurid hypotheticals that have never occurred in 234 years of history, almost certainly never will occur and would virtually certainly result in impeachment and Senate conviction (thus authorizing criminal prosecution) if they did occur,” Mr. Sauer wrote.

Still, the prospect of ordering the military to conduct unlawful killings has crossed Mr. Trump’s mind.

In 2015, early in his first campaign for the presidency, Mr. Trump vowed to order the military to kill the relatives of terrorists.

“We’re fighting a very politically correct war,” Mr. Trump said, referring to efforts to defeat the Islamic State. He added, “The other thing with the terrorists, you have to take out their families.”

In an interview at the time, Michael V. Hayden, the retired Air Force general who has directed both the National Security Agency and the C.I.A., said that such an order would be unlawful and that military personnel would be required to refuse to follow it.

“If he were to order that once in government,” Mr. Hayden said, “the American armed forces would refuse to act.”

Ms. Bondi’s brief quoted the exchange and said her clients “concur with General Hayden’s assessment.”

Asked about Mr. Hayden’s statement at a Republican primary debate in March 2016, Mr. Trump said the military would follow his instructions.

“They won’t refuse,” he said. “They’re not going to refuse me. Believe me.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002."

Must the Military Disobey Unlawful Orders? Pam Bondi Has Said Yes. - The New York Times