There is technically no law against doing nothing while millions suffer and hundreds of thousands die from a disease it is in your power to curtail. No one’s going to arrest you for ensuring scores of needless deaths through demented, inflammatory rhetoric. Downplaying a plague for political gain: legal as a stroll through the park. And this is Trump, after all, whose many actual alleged crimes have gone (and will continue to go) unpunished. But if and when he leaves office, and the scope of his administration’s indifference becomes clearer, might there be the appetite, and/or the legal standing, for a charge of criminal negligence in his handling of the pandemic? For this week’s Giz Asks, we reached out to a number of experts to find out.
Miriam Bauer
Professor, Law, Brooklyn Law School
Regardless of how deficient the Trump administration’s Coronavirus response has been, it is doubtful any court would permit a criminal negligence prosecution against the President, even after he left office. First, such a prosecution would be bounded by the language of a state’s criminal negligence statute (e.g., criminally negligent homicide). In many states the “negligence” component requires behaviour constituting a gross deviation from the standard of care one would expect in a given situation. However strongly many of us may believe the Trump administration has faltered in its response to covid-19, it is far from clear that a jury would unanimously agree that certain instances of Donald Trump’s behaviour meet this standard (and that’s assuming one could come up with a relevant “standard of care” for the President of the United States in regard to a public health disaster – a mental exercise that highlights the problems with bringing this kind of charge in the first place).
More importantly, any prosecution of Trump would confront a knotty causation issue. Even if one could identify specific behaviour that established Donald Trump’s criminal negligence, one would also have to draw a line from the President’s negligence to someone’s death. However persuasive such a claim might feel to audiences outside the courtroom, any political officer such as the President could plausibly argue that many other supervening factors “caused” a given person’s death, up to and including the responses of local and state officials.
To be sure, Donald Trump and his companies will likely face numerous criminal and civil charges once he leaves office, but it is doubtful that any of those charges will directly relate to specific policies his administration developed and implemented. As for the Trump administration’s disastrous covid-19 response, citizens possess a far more effective way of responding to gross negligence: vote Trump out on election day.
Paul Musgrave
Assistant Professor, Political Science, University of Massachusetts Amherst
It would be nearly impossible, and more likely actually impossible, to prosecute Trump for criminal negligence regarding the coronavirus. For one thing, it’s never happened before: to prosecute a president for official acts or policies undertaken while in office would be a radical break with past practices. Typically, we hold elected officials accountable through elections, which (in theory) incentivise those officials to perform their duties well.
This reasoning goes back to the 17th century. The people who wrote the Constitution did not want to repeat the mistakes of the English Civil War, when these kinds of prosecutions were on the table. They didn’t want politics to devolve into a bloodsport. That’s why impeachment is such a limited punishment: you can lose your job, you can be banned from holding official office in the U.S.., but that’s about it — you can’t be thrown in jail, you can’t be executed. By design, it’s the least vengeful political system imaginable.
It would also probably be impossible for a former U.S. president to get a fair trial: you would need, somehow, to find 12 U.S. citizens who do not have an opinion on the president of the United States.
Of course, this is distinct from personal wrongdoing committed in a President’s capacity as a private citizen, or from misuse of government resources. The category of things that can get you impeached but not imprisoned is a very capacious one, and those offences are fair game. Though the problem of finding an impartial jury persists. (And, yes, that holds for any state prosecutions, too.)
And while prosecuting presidents after they leave office is unprecedented in American history, it’s not unprecedented around the world — in Mexico, for instance, the current president is trying to put forward a national referendum that would allow him to investigate the 5 preceding presidents for wrongdoing. Many South Korean presidents and a recent French prime minister were prosecuted and even jailed. So there are ways that this could be done, but doing so would require some changes to how the U.S. system works.
Austin Sarat
Professor of Jurisprudence and Political Science at Amherst College
I do not believe that President Trump can or should be held criminally negligent for his negligence in handling the covid-19 pandemic. In my view the president was indeed negligent for failing to act in order to prevent the reasonably foreseeable disaster caused by the coronavirus in the United States. But the criminal process is the wrong way to hold him accountable.
Trump’s failings are moral and political. He needs to be judged through the prism of history and through a political repudiation of him and his grossly inadequate response to the pain, suffering, and death that unfolded all around him. Doing so is necessary if the United States is ever to free itself from Trumpism and all that it represents. The American people need to do that work of repudiation and not turn to the criminal law.
And even if one were to want to bring a criminal negligence prosecution it would be difficult to make it stick. To do so, a prosecutor would have to show that Trump behaved in a way that no reasonable person ever would and displayed reckless disregard for human life. That prosecutor would also have to show that his action or inaction caused death or serious injury to particular people. As one commentator rightly noted, “It’s much harder to establish guilt for collective suffering, especially with all the variables of covid-19 infections.”
Turning to the criminal law would make Trump into a martyr and a victim. It would embolden his most fervent supporters and further divide an already dangerously divided nation.
As an alternative, moral, historical, and political accountability may be less clear and satisfying than a verdict of guilt in a courtroom. But it is far more important than the American people render their judgment than that a judge or a jury do so. A moral, historical, and political rejection would be a far more stinging rebuke. It would brand Trump as infamous, not just guilty.
Do you have a burning question for Giz Asks? Email us at tipbox@gizmodo.com.