The President and COVID-19: Above the Law

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The recently released Bob Woodward recordings from early 2020 underscore the reckless actions of our President in the early days of Coronavirus, and show the absurdity of more recent actions that have led so many close to the president to fall ill with Covid-19. Trump was recorded in early February acknowledging that the virus was highly contagious and more deadly than “even your strenuous flus.

Then, in March 19th recordings, he praised National Institute of Allergy and Infectious Diseases director Anthony Fauci’s intellect and experience, but when asked if they had met one on one, he said, “Yes, I guess, but honestly there’s not a lot of time for that, Bob.” Trump told Woodward that he was not worried about contracting the virus in those interviews but would go on to contract it before October.

Trump’s actions have led to many American deaths by coronavirus, both indirectly and directly. Indirectly, he has caused deaths by inspiring Americans to forego precautions like masks and social distancing in the name of 1st amendment rights. Directly, he has hosted campaign rallies that have been called super-spreaders and are believed to have led to Republican luminary Herman Cain’s death.

During a June 5th visit to Puritan Medical Products in Guilford, Maine, Trump toured the facility without a mask, in violation of Governor Janet Mills April 29th, 2020 Executive order requiring cloth face coverings in public settings where other physical distancing measures are difficult to maintain. At one point during the visit, the president put his arm around an employee before saying, “I’m not supposed to do that.”

On August 17th, Trump held a rally for hundreds of people at an aircraft hangar in Oshkosh, Wisconsin. Trump announced that he would make a trip to Kenosha, Wisconsin after the police shooting of Jacob Blake, a Kenosha resident and father. In a letter to the president, Wisconsin Governor Tony Evers said, “I am concerned your presence will only hinder our healing. I am concerned your presence will only delay our work to overcome division and move forward together.” Trump visited Kenosha but refused to meet with the family of Blake because they wanted to have a lawyer present. In his most recent Wisconsin visit, Trump visited the city of Mosinee on September 17th. The 5000-person crowd outnumbered the city’s population.

An indoor rally in Henderson, Nevada on September 13th drew a crowd of several thousand people. Nevada’s current guidelines limit large indoor events to fewer than 50 people. Gov. Steve Sisolak called Trump’s actions “an insult to every Nevadan who has followed the directives.”

The Trump campaign hosted an event in Bemidji, Minnesota, on Friday, September 18, with a crowd size in the thousands, far outnumbering the current 250-person limit for large gatherings in the state. At a September 30th Duluth, Minnesota rally, Duluth Fire Chief estimated attendance at 3000. White House staffer Hope hicks was in attendance and her positive Coronavirus test was announced the next day.

On October 1st, just hours before Trump announced that he and Melania Trump had tested positive for Coronavirus, Trump hosted a fundraiser at his golf course in Bedminster, New Jersey. An estimated 300 people attended. New Jersey Governor Phil Murphy first enacted a 50-person cap for all gatherings, excepting some essential functions, in an executive order on March 16th and has confirmed that this limit is still in place through further executive orders, most recently on September 26th.

With such damning evidence of the president’s harmful, egregious behavior, what comes next? The ruling in the 1982 Supreme Court case Nixon v. Fitzgerald states that The President has absolute immunity from liability for civil damages arising from any official action taken while in office. Any damages imposed in a civil suit would be paid out by the US Government, not Trump. However, suits for injunctions to stop certain negligent behaviors may hold more water than those seeking damages.

Holding the president accountable for actions carried out while in office is a minefield. Executive privilege does still protect the President from facing criminal charges while still in office, and from facing criminal charges for acts committed in furtherance of his duties as president. Campaigning is not explicitly stated as one of the President’s official duties in the Constitution, but it would take some stomach-turning legal acrobatics to make the case that Trump is exposed to criminal suits for his campaign trail shenanigans. Until Trump leaves office by election or by impeachment, criminal charges for Trump’s bad behavior in office are a fantasy, and even then, proving he committed a crime beyond a reasonable doubt is a heavy burden for any prosecutor.

Well over 200,000 Americans have died of Covid-19 in 2020, including citizens in each of the 50 states. Attorneys General in each state should start thinking carefully now about how to redress grievous harm citizens in their jurisdictions faced as a result of Trump’s strategic spread of misinformation and propaganda, failure to adhere to national and local Covid-19 guidelines, and inviting citizens into harm’s way at his many political rallies.

However, as we enter October, we should not count on those aforementioned Attorneys General to address the issue at hand. We also cannot count on the Republican Senate to impeach. Whether or not he answers to the law, there is a group whom he will answer to this November: the American people. Grab your ballots. It’s voting time.

As a New York Times piece published during the Watergate scandal in October 1973 eloquently stated, “The nation is in the hands of a president overcome with dictatorial misconceptions of his constitutional authority.”