Donald Trump has handled the pandemic arguably worse than any world leader and has lied about it serially. No one can dispute that. The question though is, can Trump be criminally charged with manslaughter for intentionally failing to warn Americans about the known threats of COVID-19—and worse, lying about them? As a lawyer, I believe the answer should be yes—at least if it can be proven that Trump knowingly misled Americans about the dangers of COVID-19 because he believed it helped his re-election efforts, and Americans relied on those lies to the detriment of their health/lives.
These are not normal times. We are in the midst of a deadly pandemic that has taken over 135,000 American lives. In times like these, as Trump is aware, Americans desperately look to their president—the man empowered by the Constitution to be our “commander in chief”–for facts on how to keep themselves and their families safe.
But Trump has done the opposite—he has not only failed to warn Americans about the true threat of the virus, he misled the American people countless times, thus knowingly jeopardizing the health of Americans. That’s why former federal prosecutor and current MSNBC legal analyst Glenn Kirschner told me point-blank that in the totality, Trump’s misleading of the American public about COVID-19, “easily satisfies the three elements of either involuntary manslaughter or negligent homicide.”
Kirschner, who after serving as an Army Judge Advocate General (JAG), was a prosecutor in the U.S. Attorney’s Office for the District of Columbia for 24 years rising to the position of chief of the homicide section, laid out a compelling case of The State v. Donald Trump for his role in the death of his own citizens.
Kirschner explained the three elements, in general, that make up the crime of manslaughter. First, is a person “acting in a grossly negligent way when having a duty to act,” with Kirschner adding, “Trump had a duty to act as President and violated that by knowingly failing to warn the public about the known threats of the virus.” In fact, New York Governor Andrew Cuomo accused Trump of that very conduct on Monday, stating that Trump’s actions constitute “gross negligence” for his “attacking science,” thus “jeopardizing public health.”
Second, Kirschner added, “knowing that your action or failure to act is likely to produce death or serious bodily injury,” which again Kirschner believes Trump has fulfilled by knowing the true threat of the virus but failing to share that with the public. Finally, the former federal prosecutor explained the third element is that, “your action or failure to act was a substantial factor in causing the death of others.”
Kirschner cited as an example a New York City bar owner, Joe Joyce, whose family explained after his death from COVID-19 that he had ignored the warnings about the virus because of Trump framing it as a “hoax” simply designed to hurt him politically.
Neither Kirschner nor I are suggesting Trump is criminally liable for good faith mistakes, errors of judgment, or even incompetence. We are specifically talking about Trump knowingly failing to warn Americans about how dangerous this virus was in the midst of a deadly pandemic because he believed it helped his own re-election prospects—namely since Trump believed a quick re-opening of economy would help him win in November.
For example, on May 11, Trump claimed in a tweet, “Coronavirus numbers are looking MUCH better, going down almost everywhere.” Trump had to know that was lie given, as fact checkers noted, COVID-19 cases at the time were rising in 36 states.
The most recent example took place during Trump’s July 4 national address where he told the public in a prepared speech that “99 percent” of the cases of COVID-19 are “totally harmless.”
There’s simply no plausible way Trump didn’t know that was a lie given the information available in the public domain, as fact checkers have universally documented.
Now to be clear, Trump being successfully prosecuted for lying is still a challenge, as many well-known legal experts explained. Laurence H. Tribe, the famed professor at Harvard Law School, had harsh words for Trump’s actions saying that, “Trump is almost certainly morally responsible for tens of thousands of coronavirus deaths that would not have occurred but for his recklessly misleading public pronouncements and his grossly negligent failures to act rationally on the basis of the medical evidence available to him.”
But with that said, Tribe added, “proving that Trump caused these deaths beyond a reasonable doubt in a criminal trial would be almost impossible.”
Former Watergate prosecutor and current MSNBC legal analyst Jill Wine-Banks conveyed a similar message to me, noting that Trump’s “lies about Covid-19, masks and reopening” may constitute the basis for “an impeachable offense, but probably doesn’t rise to the level of provable elements of a crime.”
Rather, Wine-Banks believes Trump’s criminal liability is much clearer when it comes to “his campaign contribution lies and fraud in his businesses,” and she’s hopeful that he will be investigated and prosecuted for those wrongs by state and federal officials in “a Biden administration.”
And former U.S. Attorney Joyce Vance, who currently is a law professor at the University of Alabama as well as an MSNBC legal analyst, also harbored doubts, given the facts to date, that Trump could be successfully criminally prosecuted, noting, “I don’t see a sustainable charge.” But she added, “I’m not per se ruling that out,” especially if more evidence becomes available about Trump’s “state of mind.”
I get the concerns raised by these distinguished lawyers, but I still side with Kirschner and with Cuomo’s accusation of Trump acting with “gross negligence,” which is the essence of the “reckless” conduct required under New York law to make a case for manslaughter in the second degree. Trump knew the risk associated with the virus. Yet as recent as July 4, he was still failing to inform Americans of that and instead saying it was “totally harmless” in “99 percent” of the cases.
Since that speech, nearly 10,000 more Americans have died. While not a perfect analogy, Trump’s action would be akin to a person asking if your pet snake was poisonous and you, knowing the snake was potentially deadly, instead lied, telling the person it was “totally harmless.” The person then touched the snake, was bitten, and died.
One thing is clear, though. There would be no immunity for Trump in connection with any crimes committed while in the White House. As Kirschner explained, “There’s an endless list of public officials who have been prosecuted for crimes committed while in office.” True, none were presidents, but Kirschner noted even Robert Mueller testified that Trump could be prosecuted for any crimes once he left office.
The question that needs to be asked is: Should a president be held criminally responsible for knowingly failing to inform the American public about the risks associated with a deadly virus during a pandemic because he believes, by doing so, it helps his political fortunes? Any answer but “yes” gives a future president a green light to do the same thing as Trump at the expense of the lives of our fellow Americans.