The following question has crossed my mind:
Does Trump's admitted deliberate hiding of the nature of the threat that CV-19 posed to the people of the United States rise to the level of criminally negligent homicide or some degree of manslaughter?
New York was certainly hit hard by the pandemic. Some thirty-odd thousand New Yorkers died unnecessarily from COVID-19. Had Trump acted responsibly, many of them would not have died.
The New York Penal Code defines Criminally Negligent Homicide as follows:
125.10 Criminally Negligent Homicide.
A person is guilty of Criminally Negligent Homicide when, with criminal negligence, he causes the death of another person. Criminally Negligent Homicide is a class E felony punishable by up to four years in prison.
The most common prosecutions under Criminally Negligent Homicide are cases in which the defendant has allegedly caused the death of one or more people while driving a motor vehicle while under the influence of alcohol or drugs, or while driving in a criminally negligent manner, e.g., texting and driving simultaneously.
Other instances of Criminally Negligent Homicide occur in situations involving children who die as a result of a parent’s neglect, or circumstances where a reasonable person would recognize the danger to the victim. Killings caused by this are unintentional, and are the result of criminal negligence, or recklessness. Criminally Negligent Homicide is distinguished from other degrees of homicide by the fact that the victim’s death was unintentional.
Link.
In the case of Trump’s shocking misbehavior with respect to the COVID-19 pandemic, an indictment may or may not be a stretch.
As I recall, to find someone guilty of negligence of either the civil or the criminal variety, the plaintiff or the prosecution must establish that there was a duty to behave or not to behave in a certain manner, that there was a breach of that duty, that the breach caused an injury (or death), and that the causation was proximate.
Here is what the New York Penal Code has to say:
§ 15.05 Culpability; definitions of culpable mental states.
The following definitions are applicable to this chapter:
[...]
4. "Criminal negligence." A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
I am convinced that Trump’s misbehavior meets the above-quoted definition of Criminal Negligence.
If Donald Trump were driving drunk and were to kill a schoolchild crossing the street in a marked crosswalk on Fifth Avenue on the Island of Manhattan with the traffic light in the schoolchild's favor, there would be an open and shut case of criminally negligent homicide. There would have been a duty to drive carefully (and not to drive drunk), Trump breached that duty, the breach caused the schoolchild’s death, and the causation was proximate. We know the identity of the victim, the cause of death, and the circumstances surrounding the death.
In the case of the virus, as President, Trump had a sworn duty to protect the people of the United States from threats foreign and domestic, and he clearly breached that duty. Due to Bob Woodward’s recordings, we can hear Trump in his own voice admitting that the virus was deadly, that it could spread through the air, and that he wanted to downplay the threat. Due to recordings of Trump’s statements made during press conferences, press availabilities, and during campaign rallies, we can hear Trump stating that the virus was no threat, that it was under control, that it would go away on its own, that the governors of States that had imposed stiff lockdowns needed to liberate their people, and that we all need to get on with our lives,
Trump would argue that where things get murky is in the matter of attributable injury and proximate causation. We cannot prove that Jane Doe, age 79, would not have died of COVID-19 in Bellevue Hospital had Trump not deliberately downplayed the severity of the threat, but rather had acted in the manner that the President of South Korea, the Prime Minister of New Zealand, the Chancellor of Germany, etc., acted. However, a compelling case can be made, based on statistics, that X thousand New Yorkers would not have died had Trump not deliberately downplayed the severity of the threat, and rather had acted in the manner that the President of South Korea, etc., had acted.
So, the question is whether the criminal law would support a conviction where one cannot prove with certainty that a particular person or particular persons died because of Trump's shocking behavior.
It may be similar to prosecutions of crimes against humanity, e.g., the waging of aggressive war, where the prosecution does not list every single individual who died during a conflict, including people who may have died of starvation or disease that resulted from the war, in addition to people who died as the direct results of bomb blasts, cannon fire, rifle fire, etc.
Another possible indictment under the New York Criminal Code includes one under Manslaughter in the second degree.
§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person[.]
Apart from the issue of causation, the key issue is whether Trump has acted recklessly.
§ 15.05 Culpability; definitions of culpable mental states.
The following definitions are applicable to this chapter:
[...]
3. "Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.
I am convinced that Trump has acted recklessly as New York defines the term.
To support a charge of Manslaughter in the first degree, the accused must have acted with intent to cause serious physical injury or death. In the case of Trump’s handling of COVID-19, I doubt that such intent could be proven.
One issue that may arise is to what extent, if any, the doctrine of Sovereign Immunity would shield Trump from criminal prosecution.
In United States law, the federal government as well as state and tribal governments generally enjoy sovereign immunity, also known as governmental immunity, from lawsuits.[1] Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. The Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning "the king can do no wrong."[2] In some situations, sovereign immunity may be waived by law.
Sovereign immunity falls into two categories:[3]
- Absolute immunity: When absolute immunity applies, a government actor may not be sued for the allegedly wrongful act, even if that person acted maliciously or in bad faith; and
- Qualified immunity: When qualified immunity applies, the government actor is shielded from liability only if specific conditions are met, as specified in statute or case law.[4]
Absolute immunity applies to acts that, if subject to challenge, would significantly affect the operation of government, such as would occur if a legislator could be sued for core legislative acts, and is also typically extended to statements made on the floor of the legislature.[5] Similar protections apply to judges who are acting in a judicial capacity.[6]
Link.
The Stripping Doctrine could come into play here.
The "stripping doctrine" permits a state official who used his or her position to act illegally to be sued in his or her individual capacity.[citation needed] However, the government itself is still immune from being sued through respondeat superior.[citation needed] The courts have called this "stripping doctrine" a legal fiction.[citation needed] Therefore, a claimant may sue an official under this "stripping doctrine" and get around any sovereign immunity that that official might have held with his or her position.
(The quoted language is geared primarily to civil suits for damages.)
Another exception to the Doctrine of Sovereign Immunity covers actions taken in bad faith. Based on what I have heard with my own ears, I’m ready to conclude that Trump has acted in bad faith.
The law develops as the result of efforts by creative and imaginative plaintiffs and prosecutors.
So, I wonder if the Attorney General of the State of New York would be willing to try to bring an indictment asserting that Trump is criminally liable for the deaths of at least Thirty-Odd Thousand Jane Does and John Does.
Other States, no doubt, have similar criminal-code provisions. So, in all likelihood, Trump’s criminal liability for his mishandling of the threat from the Novel Coronavirus, if such liability exists, is not limited to criminal liability under the Penal Code of the State of New York.