In a recent podcast interview with Mehdi Hasan, MSNBC legal analyst Glenn Kirscher posed the interesting possibility that President Donald J. Trump could face criminal liability after leaving office. According to Kirshner, the President faces criminal exposure because of his official negligence in handling the COVID 19 pandemic crisis—negligence that has led to more than 44,000 deaths, and that will likely reach 60,000-plus by August.
As reported in the April 2, 2020 edition of The Intercept, Kirscher believes that a prosecutor could bring an involuntary manslaughter case against Trump for his official response to the COVID pandemic. The former federal prosecutor laid out the three elements that constitute an involuntary manslaughter offense:
“… elements is just a fancy word for facts that we have to prove in order to hold somebody accountable for involuntary manslaughter. One, that a person acted in a grossly negligent way or importantly for our purposes, failed to act and that failure was a product of gross negligence, and I’ll talk about those two things in a minute. But number one, somebody acted in a grossly negligent way. Number two, their conduct was reasonably likely to involve serious bodily injury or death to another as a product of that grossly negligent act or failure to act. And three, that they thereby caused the death of another.”
Criminally Negligent Homicide in Texas
What about Texas law?
Under the Texas Penal Code, Section 19.01, there are four types of criminal homicides: 1) murder, 2) capital murder, 3) manslaughter, and 4) criminally negligent homicide. Texas does not officially use the term “involuntary manslaughter,” instead defining that criminal conduct as criminally negligent homicide. Section 19.05(a) says a criminally negligent homicide occurs when a person “causes the death of an individual by criminal negligence.”
Texas Penal Code, Section 6.03(d), defines criminal negligence as:
“A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”
Substantial and Unjustifiable Risk
The public record shows that President Trump has acted negligently in his response or lack of response to the COVID pandemic. The question is whether the President’s actions or failure to act constitutes criminal negligence. A timeline of those actions and/or failure to act include but is not limited to:
· December 31, 2019 – China announced to the world that it was investigating a “respiratory illness” in its city of Wuhan. The respiratory illness was called an “outbreak.”
· January 1-5, 2020 – U.S. intelligence agencies warned of the threat posed by the coronavirus. Trump took no action, nor did he instruct anyone in his administration to take remedial action.
· January 6-8, 2020 – The Centers for Disease Control and Prevention issued “travel warnings” to Americans planning trips to China. The CDC said it was “monitoring” the China “outbreak.”
· January 16, 2020 – CDC announced it would “screen” individuals arriving in America from Wuhan, China. The President was thus on notice that a serious medical crisis was developing.
· January 18, 2020 – Health and Human Services Secretary Alex Azar briefed Trump at the President’s Mar-a-Lago resort about the threat posed by the coronavirus spreading across the globe.
· January 21, 2020 – The first confirmed case of the COVID virus was found in Washington in a traveler who had recently returned from a visit to China. The same day the first case was confirmed in South Korea.
· January 22, 2020 – Trump informed the nation during a press conference that the U.S. had the virus “totally under control” and that the nation would be “just fine.”
· January 27, 2020 – White House aides urged Trump’s Chief of Staff, Mick Mulvaney, to take the threat of the COVID virus more seriously as should the President.
· January 29, 2020 – Independent of the President, Health and Human Services Secretary Alex Azar established a COVID virus task force to address the rising threat.
· January 29, 2020 – Trump’s economic adviser Peter Navarro sent a memo to Trump’s National Security Council warning that the COVID virus could kill 500,000 Americans. Surely, the NSC informed the President about the memo.
· January 30, 2020 – Secretary Azar warned Trump a second time about the threat posed by the COVID virus.
· January 31, 2020 – Trump bans entry of anyone into U.S. who had visited China within the previous 14 days. Exemptions in the travel ban would allow 40,000 people to enter U.S. from China after the ban was put in place.
· January 31, 2020 – HHS Secretary Azar declared the coronavirus a “public health emergency.
· February 5, 2020 – U.S. senators urged the Trump administration to take the COVID virus more seriously. Trump failed to heed those warnings.
· February 14, 2020 – National Security Council prepared a memo that the COVID virus required “targeted quarantine and isolation measures.” The President took no action on the memo.
· February 23, 2020 – Peter Navarro sent a second memo warning the President that many as 2 million people could lose their lives to the virus.
· February 24, 2020 – Trump declared that COVID virus was “very much under control.” That was a calculated lie.
· February 25, 2020 – National Center for Immunization and Respiratory Diseases Director Nancy Messonnier issued a strong warning about the COVID virus threat, which was angrily rebuffed by Trump.
· February 26, 2020 – First case of “community spread” of the COVID virus in the U.S. when California man became infected.
· February 26, 2020 – Vice President Mike Pence named to head a White House task force to deal with the COVID virus as Trump downplays the crisis by misinforming the nation his administration is “really prepared” to deal with the public health emergency.
· February 28, 2020 – Trump called the COVID virus a Democratic “hoax” at a South Carolina political rally. Again, a politically calculated lie.
· February 29, 2020 – Trump falsely stated that the U.S. was leading the world in testing for the virus even though the nation had only conducted a few thousand tests by end of day on February 28.
· March 4, 2020 – Trump deflected by falsely blaming the Obama administration for mishandling of the “swine flu”
· March 11, 2020 – World Health Organization declared COVID virus a “pandemic.” The U.S. death toll stood at 37 at the time.
· March 11, 2020 – Trump banned travel from European countries, except for Ireland and United Kingdom, into the U.S. Thousands of people returning from these countries were crammed into small spaces in the 13 designated airports as they awaited a limited screening process. Public health experts feared many carried the virus and were spreading it among non-infected passengers. Chicago Mayor Lori Lightfoot accused the Trump administration of creating a serious risk of illness and death. Some passengers said there was no screening at all.
· March 13, 2020 – Trump declared a “national emergency” to deal with the COVID pandemic. The virus had killed 41 people at the time.
· March 13, 2020 – Trump deliberately misinformed the nation that it was “totally unnecessary” to test people not showing symptoms of the virus infection.
· March 17, 2020 – Trump issued a “stay at home” suggestion to the nation’s workforce. Trump stated that he knew the COVID virus was a “pandemic” long before it was a pandemic, thus establishing his negligent actions and failure to take remedial actions.
· March 24, 2020 – Trump stated he wanted the nation’s economy reopened by April 12.
· March 25, 2020 – Trump falsely stated his administration had “inherited a broken test” for the COVID 19 virus, even though his administration was not provided with a DNA sequence of the virus from China until January 7, 2020—three years into his administration.
· April 3, 2020 – Trump stated that people should wear a non-medical cloth mask when going into the public arena. Although he added, he wouldn’t wear one.
· April 4 & 5, 2020 – Trump pushed an unproven anti-malaria drug, hydrozychloroquine, to treat the COVID virus. The President has a financial interest in the drug.
Presidents Actions Could Support Prosecution for Homicide
Based on this chronology of actions and failures to act, under Texas law a reasonable prosecutor could file a criminally negligent homicide against President Trump. Much weaker cases have been argued under Texas law successfully.
As the criticism of his handling of the COVID crisis has mounted, President Trump’s public behavior has become more “unhinged” and “dangerous” –so much so that the country’s national security is at risk.
Public Behavior Suggests Culpability
This was evidenced in April 17, 2020, Washington Post piece by Mary McCord, a visiting professor at Georgetown University Law Center and the legal director of the Institute for Constitutional Advocacy and Protection, in which she analyzed Trump’s tweets. McCord said that Trump’s recent tweets—”Liberate Michigan,” “Liberate Minnesota,” and “Liberate Virginia”—are at the very least a “tacit encouragement to citizens to take up arms against duly-elected state officials of the party opposite his own, in response to sometimes unpopular but legally issued stay-at-home orders.” The President called the protestors, who aggressively displayed their firearms while waving “Trump and Confederate flags” at the recent “reopen the economy,” rallies in the Michigan, Minnesota, and Virginia “very responsible” people who were “treated a little bit rough.”
These protestors, egged on by Fox News’ ultra-right wing talk show host, Jeanne Pirro, gave Trump another opportunity to divide America along ideological and racial lines.
It is obviously part of the President’s reelection strategy—the same political strategy he used in 2016 to capture the White House—to create divisive public discourse to deflect from his immoral, racist, xenophobic, and possible criminal leadership over the past three years, especially during the COVID pandemic crisis.
President Incites Insurrection
Former Texas Congressman Beto O’Rourke captured Trump’s most recent lawless, irresponsible presidential leadership with this tweet:
“Republicans will turn a blind eye & too many in the press will focus on ‘tone.’ But history books will say: In April of 2020 when the pandemic had already claimed 35,000 lives, the President of the United States incited people to storm their statehouses with AR-15s and Ak-47s.”
Mary McCord, a prominent constitutional scholar, believes Trump’s calls for insurrection are criminal, adding this observation:
“Regardless of whether the tweets are criminal on their own, more importantly, they are irresponsible and dangerous. Private armed militias recently expressed eagerness to support the President’s veiled call to arms when he shared a comment on Twitter suggesting that if he were impeached and removed from office, it could lead to civil war …”
Donald J. Trump, this President of the United States, would indeed, we believe, incite a “civil war” if his Machiavellian mind told him it would help his reelection bid and allow him to revise history. It would fit the President’s Oreweillian modus operandi, if the administration could transform its “dangerous and irresponsible” handling of the COVID pandemic crisis into “the greatest, most brilliant” handling “never before witnessed by history.”
Criminal Threat to America and the American Way
President Trump, we believe, poses a criminal threat to the United States daily. As Ms. McCord put it:
“That’s why we can write these tweets off as just hyperbole or political banter. And that’s why these tweets aren’t protected free speech. Although generally advocating for the use of force or violation of law is protected speech(as hard to conceive as that may be when the statements are made by some in a position of public trust, like the President of the United States), the Supreme Court has previously articulated that where such advocacy is ‘inciting or producing imminent lawless action and is likely to incite or produce such action,’ it loses its First Amendment protection. The President’s tweets—unabashedly using the current crisis to encourage a backlash against lawful and expert-recommended public health measures, falsely claiming a Second Amendment ‘siege’ and calling for insurrection against elected officials—have no place in our public discourse and enjoy no protection under our Constitution.”
So is the President of the United States a criminal? Unfortunately, in today’s climate, that depends on what side of the political aisle you sit.