The Criminal Case Against Donald Trump
By: Nicolas Carteron
Tags: Trump, Politics, Covid 19, Law, Society

The Criminal Case Against Donald Trump

His recklessness in handling the COVID pandemic can be seen as tantamount to second-degree, if not first-degree, murder

Today is November 14th, 2020, and since the beginning of the year, more than 250,000 Americans have died from COVID-19. In face of such calamity, we must remember that beyond the statistics, each and every one of these lost lives was a mother, father, grandparent, sibling, friend, or colleague who is dearly missed and whose death may have been prevented.

Trump’s responsibility in the failure that has been the Federal response to the crisis is obvious to all (New York Times, The Atlantic, Bloomberg, WaPo, USA Today, Nature, Vox, The Guardian) but Trump himself. In a March 2020 press briefing, the president uttered the now infamous words:

I don’t take responsibility at all. — Politico

Which he reiterated in his Axios interview in September 2020, proving yet again his complete lack of empathy for the thousands of victims:

It is what it is. — Full interview on Youtube

Not once since the beginning of the crisis has Trump showed an ounce of remorse over his actions and the dire consequences they have had on the citizens he was elected to protect. Yesterday, November 13, in a Rose Garden press conference, he reiterated the lie that his administration played a crucial role in developing a vaccine they had nothing to do with. He also celebrated vainly the many successes of his administration and how “it would have been much worse” under any other president.

Beyond his moral responsibility, which we know he’ll never acknowledge, Trump’s actions in face of the worst crisis to hit the country in a century “meet all the legal standard for second-degree murder” according to former federal prosecutor Glenn Kirschner. It is arguable that they also could meet the standard for first-degree murder.

Depraved-heart murder

The legal definition of second-degree murder is a

murder that is not premeditated, or [a] murder that is caused by the offender’s reckless conduct that displays an obvious lack of concern for human life.

— Cornell Law

Another similar notion in American law is that of depraved-heart murder, defined as

killing someone in a way that demonstrates a callous disregard for the value of human life. For example, if a person intentionally fires a gun into a crowded room, and someone dies, the person could be convicted of depraved heart murder.

— Cornell Law

In the 1946 case Commonwealth v. Malone, used as a definition of depraved-heart, the Pennsylvania Supreme Court affirmed the conviction for second-degree murder of a teenage boy who had induced his friends into a game of modified Russian roulette. Each teen would, in turn, point a loaded gun towards a friend and pull the trigger. One of them obviously died. The court held that:

The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long’s body. This killing was, therefore, murder, for malice […] is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.

In order to qualify for second-degree, depraved-heart murder, an act must, therefore, satisfy the following standards:

An intentional act, done in reckless disregard of its consequences;

Consequences that can be ascertained to a reasonable degree of certitude;

Which leads to the death of another person.

An intentional act

In a series of calls with Bob Woodward, Donald Trump admitted that he downplayed the dangers of the COVID crisis from the beginning:

This is more deadly,” he said. “This is five per — you know, this is 5 percent versus 1 percent and less than 1 percent, you know. So, this is deadly stuff.

[…]

I wanted to always play it down. I still like playing it down,” Trump said on March 19. “Because I don’t want to create a panic.”

He intentionally played down the risks of the disease to the public while being fully aware of its true dangerousness. By stating that he wanted to avoid a panic, Trump is trying to push what is called a necessity defence.

Turning once again to Cornell Law for a proper definition:

Defense to liability for unlawful activity where the conduct cannot be avoided and one is justified in the particular conduct because it will prevent the occurrence of a harm that is more serious.

Trump’s actions during the pandemic do not appear to satisfy any of these requirements, and it would be dubious to claim that panic would have caused more harm than the virus did.

Moreover, his “it is what it is” comment and the many more he made about “we’re rounding the corner” and “we have prevented millions of death” indicate his utter lack of empathy for the consequences of his actions.

Ascertainable consequences

Once again referring to the Woodward tapes, Trump knew by February that the case fatality rate of the virus was way higher than that of the flu. Nonetheless, he continued comparing the two disease, calling COVID the “China flu.” He even compared them again when he was released from Walter Reed.

It was clear — or should have been for a person in his position of power, able to gather unmatchable levels of intelligence from the various government agencies — that the virus posed a deadly threat to America and its citizens. The consequences of his actions, or lack thereof, were, therefore, more than reasonably ascertainable.

As for the requirement that the act lead to the death of another person, there is no discussion here. It is therefore my belief, shared by experienced legal professionals, that Donald Trump’s actions during the COVID crisis meet the standard for second-degree murder.

However, in light of reporting on the behaviour of particular people in his administration, we are justified in asking whether his actions could not be construed as first-degree murder.

First-degree murder?

First-degree murder requires, on top of the conditions set above, premeditation, “when an individual contemplates, for any length of time, undertaking an activity and then subsequently takes the action.” — Cornell Law

In a July article, Vanity Fair reported on the national COVID testing plan whose management was entrusted to Jared Kushner. A passage of the piece, if true, would prove depraved and immoral beyond reason, even by this administration’s standards:

Most troubling of all, perhaps, was a sentiment the expert said a member of Kushner’s team expressed: that because the virus had hit blue states hardest, a national plan was unnecessary and would not make sense politically. “The political folks believed that because it was going to be relegated to Democratic states, that they could blame those governors, and that would be an effective political strategy,” said the expert.

That logic may have swayed Kushner. “It was very clear that Jared was ultimately the decision maker as to what [plan] was going to come out,” the expert said.

As stated above, criminal cases do not require a motive, but having one is always relevant. Here, the motive would be clear: personal political gain.

Should the Trump administration have abandoned its national, coordinated testing plan in order to further their own selfish political position by hurting “blue states”, it is my belief that such actions (or omissions to act) could be construed as a form of premeditation that would, in turn, satisfy the standard for first-degree murder.