In bragging that he ordered a successful hit on Iranian Maj. Gen. Qassem Soleimani, President Trump has admitted to killing a senior government official of a sovereign state, Iran, while he was traveling in another sovereign state, Iraq. On its face, his conduct and intent satisfy the elements of premeditated murder under Section 1116 of Title 18 of the United States Criminal Code, "Murder or manslaughter of foreign officials, official guests, or internationally protected persons."
We can and must debate, and many are, whether the killing was an "assassination" or a violation of "international norms," but neither of those charges has been codified by Congress into the criminal code and thus they have no teeth. The assassination ban is found in an executive order and a president is not bound by it. As for international norms, including the adherence to long-standing principles of the ethics of just war, well, ignoring norms is Trump's calling card, and his supporters love him for it.
The provisions of the United States Criminal Code, however, bind all persons, including presidents. They cannot be waived, and they have very sharp teeth. By ordering the drone attack killing General Soleimani, it appears that Trump committed a homicide under federal law.
Congress passed the relevant law against the “murder or manslaughter of foreign officials,” Section 1116 of Title 18, in response to the killing of Israeli Olympic athletes in Germany, and other acts of terrorism around the world, It provides that “[w]hoever kills or attempts to kill a foreign official, official guest, or internationally protected person shall be punished." After becoming a signatory in 1973 to a United Nations convention to deter attacks on foreign officials and other protected persons as they travel and conduct the business of state around the globe, the Congress expanded Section 1116 to provide the Department of Justice with extraterritorial jurisdiction to pursue such crimes.
Unchastened by impeachment, and emboldened by the Justice Department's dusty old opinion that he cannot be indicted while in office, Trump nonetheless ordered the killing of Soleimani, a senior Iranian official, in Iraq, in violation of Section 1116. The Department of Justice has jurisdiction to prosecute a violation of that statute.
This killing cannot be justified under either the 2001 Authorization for Use of Military Force or the 2002 Authorization for Use of Military Force Against Iraq. They are not blank checks cashed in whenever and wherever the president so desires. The 2001 AUMF applied to those responsible for the attacks of Sept. 11, 2001. The 2002 AUMF applied to the Saddam Hussein regime in Iraq. Trump's drone attack was against an Iranian official who had nothing to do with 9/11 nor with the dead Iraqi leader's regime.
Though he now sings a different tune, Defense Secretary Mark Esper stated before the Senate Armed Services Committee during his confirmation hearings that neither AUMF would allow military action against Iran.
Current DOJ opinions have prevented the indictment of a sitting president. But it’s worth noting that if one is found guilty of homicide under Section 1116, and if it is deemed "premeditated," the penalty is life in prison, with no parole.
In other words, it is among the most serious crimes on the books, and justice should await him after his presidency.
United States Attorney General William Barr, we know from his recent speeches, would disagree. Barr scoffs at the notion that any president is bound by any criminal statute. His view of the scope of a president's Article II powers has no limits and, presumably, permits conduct that would violate federal homicide statutes. Under the Barr Rule, our Congress may enact such a statute, but our president need not follow it unless the law states so expressly. In other words, our president is above the law.
Reality check: The Supreme Court has never adopted a rule of statutory interpretation that broad as to make a president immune from all criminal laws, and certainly not homicide.
Unsurprisingly, President Trump subscribes to the Barr Rule. We recall that he famously bragged that he "could stand in the middle of 5th Avenue and shoot somebody and [he] wouldn't lose voters." His lawyers have embraced and extended that boast in federal court to argue that the Manhattan district attorney's office cannot subpoena Trump's tax returns. Sticking doggedly to the script, in response to a question from a federal judge, Trump's lawyer asserted that he could not be prosecuted by a state government for homicide, either, while he is in office. These arguments failed in the lower courts and the case is now pending in the Supreme Court.
Since his inauguration, Trump has conducted his presidency as if it is a criminal enterprise, so it is not surprising that targeted hits are now part of his repertoire. That Soleimani is a bad actor on the world stage is not a legally permitted defense to a murder charge in federal court. Mobsters' targets are usually "bad guys" too, of course. If Soleimani’s history reveals him to be a “terrorist,” a word with varying definition, then our beef is with the Iranian state, of which he is a senior official—not with him as an individual. Armed drone attacks in Iran would be acts of war and we could debate the foreign policy, legal and moral justifications for those actions. Congress would be involved in that discussion. But killing Soleimani in Iraq is a federal homicide.
The language in Section 1116 defines as a homicide conduct that the U.N. considered an act of terrorism, and required all signatories to add provisions to their own domestic law. The fact that the background of the law was designed to thwart terrorism does not excuse Trump from its express terms.
Presidents George W. Bush and Barack Obama killed alleged terrorists and civilians too with armed drones—thousands of them according to several entities tracking the deaths. They have been justifiably criticized for those killings on the grounds that they are both immoral and bad policy. Indeed, President Obama has killed three American citizens, that we know of, implicating the due process clause of the Constitution.
But, to our knowledge, those presidents never killed a foreign government official from a sovereign state with which we are not at war while he was traveling in another sovereign state with which we are not at war. Their actions killing non-governmental actors may have been wrong for a variety of reasons, but they did not violate Section 1116.
Finally, if an unmanned shot from the sky killing an Iranian general does not "feel" enough like a federal homicide, imagine this: What if the president had ordered the killing of a German official (who Trump suspects has ties to ISIS) traveling at Charles de Gaulle Airport in Paris?
If proven, that fact pattern would violate 18 USC Section 1116 — our criminal code does not discriminate among victims (Iranian/German) and places (Iraq/France). Perhaps the president is wrong this time, and voters will care that he is bragging about committing cold-blooded murder. Perhaps Republican senators will too.
Vicki Divoll was general counsel of the Senate Select Committee on Intelligence and assistant general counsel at the Central Intelligence Agency.