As a general principle, we try to hold our public officials liable for acts of gross negligence and reckless disregard for human life. So, what about Donald Trump? Could he one day be held liable, either civilly or criminally, for the deaths of tens of thousands of Americans who have succumbed to the lethal, novel coronavirus known as COVID-19?
Trump has taken actions that place his constituency—the American people—in mortal danger on a scale that could have been reduced had he acted reasonably and promptly to contain and mitigate the dangers of the virus. Among other acts of recklessness that could result in legal liability, the Trump Administration disbanded its global health security team in May 2018, despite the team’s warnings that the United States would be extremely vulnerable in the face of a catastrophic flu pandemic.
In the absence of experienced and centralized leadership, the United States has had no coherent national plan to deal with COVID-19, forcing governors and local officials to take the lead in the battle against the virus.
In addition, despite multiple warnings, the Trump Administration failed to replenish the nation’s stockpile of ventilators and personal protective equipment including masks, gowns, and gloves, creating critical shortages across the country. And the administration was notoriously and incompetently slow to develop and distribute reliable tests to measure the spread of the infection. Moreover, Trump himself has repeatedly lied about the risks that COVID-19 posed to the country, falsely assuring the public that there was no cause for alarm.
“It will all work out well,” Trump tweeted on January 24. Six days later he declared, during a speech in Michigan, “We have very little problem [sic] in this country at this moment—five [confirmed cases]. And those people are all recuperating successfully.”
The lies came even more furiously in February, as the perils of the virus were becoming unmistakably clear. On February 10, at a rally in New Hampshire, Trump blasted Democratic concerns about the virus as a “vile hoax” and told a cheering crowd, “Looks like by April, you know, in theory, when it gets a little warmer, it miraculously goes away.”
And now that April has arrived with a vengeance and the number of dead Americans surges exponentially, Trump is touting hydroxychloroquine, a drug used to treat malaria and lupus, as a possible miracle cure for COVID-19, despite the lack of clinical testing to support any such claims.
Yet even with this long trail of gross negligence, it is unlikely that Trump will ever be held civilly or criminally accountable for his lies and misconduct.
In its 1982 ruling in Nixon v. Fitzgerald, a wrongful termination lawsuit brought by a former Air Force management analyst, the U.S. Supreme Court held that the president enjoys absolute immunity in civil cases from damages arising from his official acts. Such immunity, the court held, applies even when the president abuses his discretion. Fifteen years later, in Clinton v. Jones, the court qualified its Fitzgerald ruling, holding that a President can be sued civilly in federal court, but only for private acts committed prior to becoming President.
Neither Clinton nor Fitzgerald explicitly resolved the question of whether civil suits against the President for his official acts can be filed in state courts. However, in Clinton, the Supreme Court discouraged such actions, observing that state lawsuits against the President would have difficult legal obstacles to overcome. And, at least until he leaves office — hopefully, after losing the next election—Trump also appears safe from criminal liability. Under longstanding Justice Department policy, sitting Presidents are immune from federal criminal prosecution.
But what about after Trump leaves office?
Former federal prosecutor Glenn Kirshner, now a legal analyst with NBC and MSNBC, speculated in an April 2 interview with journalist Mehdi Hasan on The Intercept’s Deconstructed podcast that Trump could be prosecuted for involuntary manslaughter once he exits the presidency.
“There are three things, what we call elements that we have to prove in order to hold somebody accountable for involuntary manslaughter,” Kirshner explained. “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. 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.”
Kirshner argued that Trump’s record on COVID-19 satisfies all three elements for criminal liability. He also predicted that Trump would face civil suits on the same basis in “each jurisdiction in which people have died as a result of his gross negligence.”
Still, Kirshner acknowledged that proving causation will be the most challenging hurtle to bringing Trump to justice. Sadly, in the end, the hurdle may prove too high to surmount.
Legal causation is a complicated concept. Trump’s COVID-19 malfeasance and negligence are but two of the many factors that have caused patients to contract the disease and die. Other factors include the deadly nature of the virus itself, for which we can’t blame Trump. For a concurrent factor of causation to give rise to legal liability, it must be what the law calls “substantial,” which most jurisdictions define as a factor that contributed to the harm alleged, but that cannot be deemed remote or trivial.
It will take a particularly strong case with particularly provable links to Trump’s refusal to dispatch medical equipment or test kits to hot spots in places like New York City or Detroit to bring Trump personally to justice, either criminally or civilly. That will be a tough sell, as they say in litigation circles, even before open-minded judges and juries.
In the meantime, I’ll be saving my breath to get through the pandemic, and planning along with millions of other Americans to send Trump packing in November.