MSNBC Legal Analyst: Trump Must Be Investigated For Negligent Homicide And Manslaughter

YouTube Screenshot/MSNBC

We recently discussed how an American University professor called for the impeachment of President Donald Trump over his handling of the coronavirus outbreak. Not to be outdone, MSNBC legal analyst Glenn Kirschner is now declaring that Trump should be charged with negligent homicide over his conduct. While insisting that, as a former prosecutor, this is something he “actually know[s] too much about,” Kirschner proceeds to utterly misrepresent the controlling law and definitions of such a criminal case. While I come from the other perspective of a criminal defense attorney, the argument being put forward by the MSNBC legal analyst is devoid of any basis in the law. It does however play well for those who believe impeachment or prosecution are entirely fluid and relative concepts when it comes to Trump.

Kirchner has proven a reassuring legal analyst for MSNBC viewers in predicting Trump’s demise or, a year ago, predicting that Trump’s emergency order would quickly go down in flames. (Trump has largely if not entirely prevailed as some of us predicted).

Now, however, Kirschner is telling viewers that Trump can be charged with negligent homicide in a series of tweets:

“Hey All. Can we talk about 1 of the few topics I may actually know too much about: homicide? Specifically, whether Donald Trump may have criminal exposure for some level of negligent homicide or voluntary/involuntary manslaughter for the way he’s mishandled the Coronavirus crisis.”

He explained that his experience as a prosecutor gives him this confidence of a credible charge:

“I spent 22 of my 30 years as a federal prosecutor handling murder cases in Washington, DC. I served as Chief of the Homicide Section at the DC US Attorney’s Office, overseeing all murder prosecutions in the city. I was always on the lookout for novel ways to apply homicide . . .

I was always on the lookout for novel ways to apply homicide liability in an attempt to appropriately and ethically hold accountable those who were responsible for taking the life of a fellow human being. I think it’s fair to observe that there’s nothing more devastating to a family than losing a loved one to ether violent crime or to an illness that could have been prevented or mitigated/ I’m trying to assimilate all available evidence (rapidly developing and being reported every day) to fairly assess whether Trump and his administration may have acted/failed to act in a way that could give rise to homicide liability. This is not an easy question.”

It actually is “an easy question” because Kirschner’s theory is absolutely absurd. Not novel. Nonsense.

The courts have long recognized that discretionary actions by public officials is not the subject of civil, let alone criminal, liability. The Federal Tort Claims Act waives sovereign immunity for negligence with the express exception for discretionary functions. Such functions generally mean under cases like Berkovitz v. United States , 486 U.S. 531 (1988), that public officials are protected in making choices that are based on public policy or priorities. As the Supreme Court reaffirmed in United States v. Gaubert, 499 U.S. 315, 325 (1991). the federal law protects decisions that are based on policy choices and courts will not second guess such choices.

Seeking criminal charges is even more difficult with a higher burden of proof. Bad policies choices are not crimes. The government has killed millions of people through bad choices from lax environmental protections to health care choices to the failure to act upon various crises. Obviously, the federal government is unlikely to bring such a charge criminalizing federal decisionmaking. Moreover state prosecutions on such theories have failed. Take the case of FBI sniper Lon Horiuchi, formerly part of an elite Hostage Rescue Team were deployed to Ruby Ridge for the infamous standoff with a family involving a weapons charge (and suspicion of involving in the shooting of a deputy marshal). In firing on armed individuals, Horiuchi shot and killed Vicki Weaver who was holding a child. The Justice Department declined prosecution because 18 U.S.C. 242 only covers the “willful” deprivation of federal constitutional or statutory rights by government actors. Horiuchi was wrong in firing the shot but he did not willfully use unreasonable force because he thought he was protecting fellow officers and firing at a fleeing armed felon.

When criminal charges were brought by state officials, they were promptly removed to federal court and then dismissed. The district court and then the federal appellate court ruled that the action was taken within the officer’s scope of authority and that he believed that the act was necessary and proper under the circumstances.

The Horiuchi case involved a far more narrow and concrete set of elements but still failed. To suggest that decisions are criminal made in the a sweeping pandemic (with the advice of a health care task force) is nonsensical.

Yet, Kirschner seems entirely unburdened by the law or controlling precedent in assuring the public that this is a real option. Notably, he again repeats the MSNBC mantra of a litany of crimes by Trump that were notably omitted from any of the articles of impeachment by the Democrats. Those claims were also made with the same degree of confidence despite the fact that they conflicted with controlling precedent:

“Further, whereas the evidence is clear that Trump has committed multiple criminal offenses both before his tenure as president (campaign finance crimes) & during his time as president (obstruction of justice, bribery/extortion) homicide liability by his negligent/grossly negligent (and/or possibly intentional) mishandling of the Coronavirus crisis in the US is a more nuanced and thorny issue and deserves careful consideration. But the homicide liability issue MUST be addressed because ALL criminal charges will have to be investigated and, if the evidence dictates it, prosecuted come Jan. 2021. Stay tuned.”

That is the point of course: to keep people to stay tuned. The failure of any of the past breathless criminal theories to actually materialize has not diminished the appetite, if not the need, for additional theories. It is not “nuanced.” It is nonsense. A case cannot be based on such a theory and, if this is an example of how Kirschner continually found “novel ways to apply homicide liability” as a prosecutor, it is a chilling prospect for anyone who values the rule of law.

A “novel” virus is not an invitation for novel criminal theories. If Kirschner is correct, every living president in our lifetime could have been charged with negligent homicide. MSNBC has become a font for such flights of legal fancies. It may be cathartic but comes at a price. It further seeks to bend our legal standards to meet the needs of this age of rage. Rather than inform viewers of the reality of the law, it seeks to fill an insatiable appetite for impeachment and prosecution fantasies. The result is a race to the bottom in legal analysis that is inimical to both the media and the law.

197 thoughts on “MSNBC Legal Analyst: Trump Must Be Investigated For Negligent Homicide And Manslaughter”

  1. Two months ago, January 20, 2020 – a date which will live in infamy – the United States of America was suddenly and deliberately attacked by the Communist People’s Republic of China.

    The United States was at peace with that nation and, wittingly or unwittingly, through criminal dereliction and negligence and attempting to obtain the cloak of plausible deniability, the People’s Republic of China released on the world the COVID-19 biological weapon.

    China has, therefore, undertaken a surprise offensive extending throughout the World. The Commander in Chief of the Army and Navy has directed his entire Cabinet that all measures be taken for the defense of the United States.

    With confidence in the United States Center For Disease Control and with the unbounding determination of the American people the Untied States will gain the inevitable triumph so help us God.

    Congress must declare that since the unprovoked and dastardly attack by China on January 20, 2020, a state of war has existed between the United States and China.

  2. THE CASE FOR NEGLIGENCE

    Trump’s Criminal Response To Pandemic

    What Follows is an abbreviated timeline chronicling Trump’s mismanagement of our national emergency. For purposes of editing, this timeline begins several weeks into the pandemic.
    ……………………………………………………………

    Late February:

    Trump seemed largely uninterested in the global virus statistics during this period, but there were other indicators — stock-market indexes — that mattered a lot to him. And by the last week of February, those market indexes were falling.

    He criticized CNN and MSNBC for “panicking markets.” He said at a South Carolina rally — falsely — that “the Democrat policy of open borders” had brought the virus into the country. He lashed out at “Do Nothing Democrat comrades.” He tweeted about “Cryin’ Chuck Schumer,” mocking Schumer for arguing that Trump should be more aggressive in fighting the virus. The next week, Trump would blame an Obama administration regulation for slowing the production of test kits. There was no truth to the charge.

    Throughout late February, Trump also continued to claim the situation was improving. On Feb. 26, he said: “We’re going down, not up. We’re going very substantially down, not up.” On Feb. 27, he predicted: “It’s going to disappear. One day — it’s like a miracle — it will disappear.” On Feb. 29, he said a vaccine would be available “very quickly” and “very rapidly” and praised his administration’s actions as “the most aggressive taken by any country.” None of these claims were true.

    By the end of February, there were 85,403 confirmed cases, in 55 countries around the world.

    Early March:

    Trump suggested on multiple occasions that the virus was less serious than the flu. “We’re talking about a much smaller range” of deaths than from the flu, he said on March 2. “It’s very mild,” he told Hannity on March 4. On March 7, he said, “I’m not concerned at all.” On March 10, he promised: “It will go away. Just stay calm. It will go away.”

    The first part of March was also when more people began to understand that the United States had fallen behind on testing, and Trump administration officials responded with untruths.Continue reading the ma

    Alex Azar, the secretary of health and human services, told ABC, “There is no testing kit shortage, nor has there ever been.” Trump, while touring the C.D.C. on March 6, said, “Anybody that wants a test can get a test.”

    That C.D.C. tour was a microcosm of Trump’s entire approach to the crisis. While speaking on camera, he made statements that were outright wrong, like the testing claim. He brought up issues that had nothing to do with the virus, like his impeachment. Trump also suggested that he knew as much as any scientist:

    I like this stuff. I really get it. People are surprised that I understand it. Every one of these doctors said, ‘How do you know so much about this?’ Maybe I have a natural ability. Maybe I should have done that instead of running for president.

    On March 10, the World Health Organization reported 113,702 cases of the virus in more than 100 countries.

    Mid March And Beyond:

    On the night of March 11, Trump gave an Oval Office address meant to convey seriousness. It included some valuable advice, like the importance of hand-washing. But it also continued many of the old patterns of self-congratulation, blame-shifting and misinformation. Afterward, Trump aides corrected three different misstatements.

    https://www.nytimes.com/2020/03/15/opinion/trump-coronavirus.html?action=click&module=Opinion&pgtype=Homepage

    1. Regarding Above:

      From a technical standpoint, all these references may not specifically qualify as ‘criminal’. But a military Commander would most certainly be court martialed for denying such a documented threat. And likewise, a military Commander would have been court martialed for denying Russian interference as Trump has. There’s something about this president that reeks treachery.

      1. But a military Commander would most certainly be court martialed for denying such a documented threat.

        1. No one here believes you have any expertise in the military code.

        2. What you attribute to the president is also false.

        Do try to be less fraudulent in the future.

        1. Absurd, Trump’s denial of this pandemic is so well-document that only the most obstinate of defenders would deny at this point. And one can be sure that mass-layoff announcements will become of staple of news cycles in the near future. As those announcements proliferate Trump’s approval rating will plummet. One need only consider what Hurricane Katrina did to to George W’s standing to gauge Trump’s reelection chances.

          1. The fact today wiped out any gain the market has seen since Trump took office will spur a new flurry of desperation on Twitter as soon as they take the shock collar off of him at the daily response team briefings.

            Any mentally balanced individual would have realized they were in the land of diminished returns with press appearances given market response, etc.

            But no, Trump can’t stay away. He’s got to go autograph that 5 minute chart just like Bush jr. had to jump in a flight suit, dye his hair and march out on an aircraft carrier to declare mission accomplished…

            Who knows, maybe from their perspective it IS mission accomplished. It’s just the rest of us have to clean up the wreckage.

            1. Paulie, I think it’s conceivable that in July Republicans may want nominate a different candidate. News between now and then could get so bad that Trump’s approval could melt like the markets.

                1. Absurd, tell us the last time a president was reelected during a bad recession.

        2. Paint Chips may have eaten the paint chips without knowing there was lead in them. I wonder if he is going to sue for each IQ point below 100. Potentially that could amount to a lot of money..

          1. Diaper Man, we dont need you coughing on these threads. You should totally self isolate.

    2. This is why you don’t cry wolf every hour of every day of every week of every year for three years running, or run around breathlessly screaming, “The sky is falling! The sky is falling!” all the time.

      Which is why despite the low confidence in the government reported lately,
      there’s even less confidence in the media.

      The media doesn’t get points for accidentally being right for once. They lose even more points because all the noise they’ve generated over the past three years has at last drowned out really important news.

  3. (music)
    Dumb schmuck. He’s a dumb schmuck!
    What kind of people hear this dumb schmuck?
    Fat kids skinny kids..
    Kids who climb on rocks.

  4. Kirschner said he was gathering information to ASSESS whether Trump could have criminal liability for his complete failure of leadership, his lying to the American people by calling COVID-19 a “hoax”, lying that there would soon be 0 cases, lying about the extent and duration of this pandemic, lying that we’d have a vaccine “very soon” and his dismantling of the rapid response team, which he denies even knowing about. According to Turley, such assessments shouldn’t even be considered, much less expressed. Kirshner has every right not only to make such assessments, but to express them. Trump is dangerously stupid* and inept, plus he lies every single day, and, contrary to Turley’s claim that every US President could face liability, Trump is uniquely deceitful and incompetent. His incompetence and mendacity resulting in the slow walk of steps to achieve containment have caused more people to get sick and some are dying as a result. Everything he does is for the purpose of seeking attention, praise and adulation, and he takes credit for every good idea someone else had. His lies, exacerbated by Fox News and other pro-Trump media, have caused people not to take the risk seriously and to resent efforts to control further spread; therefore, people violate guidelines put in place for their safety. Yesterday, I passed by a couple of St. Paddy’s Day parties, and people weren’t standing 6 feet apart. It has been necessary in Florida to send police to clear the beaches of spring break revelers. His lying and trying to downplay this health crisis to avoid personal responsibility and for political purposes exceed mere poor judgment or the pass given for discretionary decisions. People have been hurt as a result. There should be a legal remedy for such conduct. Kirshner is not way off-base.

    Republicans aren’t much better. McConnell decided that the Senate should take a 3-day holiday instead of working with the House to pass a relief bill for those furloughed from their jobs.

    But….Turley’s take on Kirshner’s comments gets the Trumpsters stirred up into believing poor little Trumpy Bear is being victimized yet again, since Fox News has stopped downplaying the fact that the US is looking at an historic event that should be taken seriously.

    No, Jon, the problem isn’t Glenn Kirschner or MSNBC–it’s Trump.

    *ever hear the phrase “felony stupid”? It applies to Trump.

    1. One other thing, Jon: Kirschner didn’t say Trump “MUST BE investigated for negligent homicide and manslaughter.” That spin on what he actually said is deceitful, and the sort of thing one would expect from Fox News, not a law professor. You keep squandering your credibility for Trump, Jon, and he’s really not worth it.

      1. Sometimes, in between harrumphs, Mr. Turley can lose his way. I’m thinking he’s as freaked as the rest of us about Covid 19…

        And Trump.

        Just wish sometimes he wasn’t branding himself so hard to the mutant packs.

        I mean, I get the effort to keep a supposedly balanced eye on the ball, but I think one thing the age of the orange one has ushered is the complete skewing of what that center may be.

  5. Notice how this fool and his fellow conspiracy theorists (i.e., Nancy, Schumer, et al) claim that Trump has mismanaged this crisis but they never identify anything he has or has not done. They can’t because they are impulsively spewing from a position of absolute ignorance. These deranged claims are completely contrary to the claims of other fellow Democratic Socialists, like Gov. Newsom and Gov. Cuomo, who have praised Trump’s management of the crisis for their states (1/6 of US pop.) from a position of direct experience. If this mental meandering is an example of this fool’s legal knowledge, then all of his past cases require thorough review to insure that his incredibly poor reason has not severely, or otherwise, harmed the constituents of his district.

    1. Notice how this fool and his fellow conspiracy theorists (i.e., Nancy, Schumer, et al) claim that Trump has mismanaged this crisis but they never identify anything he has or has not done.

      Not enough people have been tested, something something.

      People ill enough to be hospitalized have been tested, and it’s the quantum of available hospital beds and especially ventilators which is at issue. We get a handle on the dimensions of our real problems by testing the ill. What’s important is that the moderately ill and the mildly ill not infect others, and this requires a mix of mandatory measures and public service campaigns for voluntary compliance. It’s also important that the non-ill avoid infection by being cautious. The testing will help sort people, but you can recognize the signs of this illness without the tests.

      1. TIA, my wife and I are personally on self quarantine because a friend I visited Saturday was notified that he had been treated by infected staff at a medical facility on a routine visit. That was now 9 days ago and they will not test him – which if negative would allow him and us to resume our normal life – because he has not yet shown symptoms. Could be worse for sure and we are surviving, hopeful we won’t become ill. More test kits could simplify and hopefully shorten our situation.

        1. Your friend was asymptomatic I take it. There has been a paper which has appeared pre-print which contended asymptomatic transmission was possible, but figured that 90% of the transmissions have been from symptomatic carriers.

          The reason for you and your wife to keep your distance from people is that you’re old. That would apply if you’d been exposed or you hadn’t. Sorry for the inconvenience, but that’s where we are right now.

          1. Thanks for advice based on pretending you know something you don’t but I have my own credentialed medical advisers. Known exposure makes a person more a risk than John Doe, whether symptomatic (yet) or not. We should all keep our distances now, but quarantining is so far not recommended for the general public nor practical, and that is our current state.

            1. Thanks for advice based on pretending you know something you don’t

              No pretending here. You’re projecting, as liberals do.

          2. If PCR (Polymerase chain reaction) is used which will be used then even if the virus is dead the test can provide a positive reaction because it is testing virus particles.

    2. Don, Trump has repeatedly stated falsehoods intended to boost his fragile ego and reelection chances and to the detriment of getting useful information out and providing actual leadership. That’s not a conspiracy unless people like Pence continue his falsehoods instead of trying to ignore him. He’s an infant.

      The favorable comments of some Democratic governors went to federal responses which Trump has fortunately not tried to jam up, and even those have decried the lack of federal leadership.

        1. He draws conclusions based on non specific generalities and what makes him feel good. I don’t think democracies can survive if his type of thinking exists in great numbers.

  6. Regardless of your political inclinations it should sadden you to see the level of imbecility that is being propagated. I wonder if the media moguls have stopped to consider the long term damage that is being done to media credibility?

    1. ti, the “legal anylysts” comments were on twitter and are now being spread and thus promoted by people like Turley.

      On the other hand, free discussion of opinions is a strength of democracies, and if you are concerned about the spreading of factual falsehoods, you should wish for the President to STFU.

      1. and if you are concerned about the spreading of factual falsehoods, you should wish for the President to STFU.

        I am concerned. There would be less mendacity in the world if your wife took your keyboard away.

  7. Prof Turley’s self-serving statement that he comes from the ‘other side of the criminal law’ is seldom evident in his opinions. He is clearly firmly against any actions being taken by anyone against Trump short of Trump attacking his family, and just as often as he finds “no problem” many of the rest of us so. If he would acknowledge his bias, that would be good. But for those of us who do it rather than write about it, he’s goofy.

    1. He is clearly firmly against any actions being taken by anyone against Trump

      Meet us halfway and try action that might be grounded in something other than fictions and something other than ‘creative’ interpretations of law.

    2. I think he’s referring to defense rather than prosecution, not political party

  8. President Trump 1st acted upon the CoronaVirus in January 2020

    No flights from China into USA
    National Emergency

    It was now up to the House lead by the DemoKKKrats to act

    But unfortunately the House Leadership DemoKKKrats were too busy signing Impeachment Documents with Personalized Engraved TaxPayer Monte Blanc Pens 🖊

    1. What did Trump do in January? The CDC/NIH and other organizations began working on a vaccine at the end of January, but I see no indication they waited for direction from the president to do their jobs.

      Trump’s China travel restrictions began on February 6th, the same day as about 20 other nations. Many more nations began restrictions one day later. Talking up this very basic reaction like it’s genius leadership instead of something anyone would do, is silly.

      A national emergency wasn’t declared until March 13th.

      In between those events you chose to highlight, Trump downplayed the virus at every opportunity.

      BTW- The impeachment documents were signed on January 15th, when there were something like two confirmed fatalities in China. Something tells me you believe the Fake News about the pens costing $15K+.

      1. “Trump’s China travel restrictions began on February 6th, the same day as about 20 other nations. Many more nations began restrictions one day later. Talking up this very basic reaction like it’s genius leadership instead of something anyone would do, is silly.”

        According to an article written in the NYTImes the Chinese travel restrictions were announced January 31 and commenced on Feb 2.

        The Democrats and MSM thought the restrictions stupid and racist. So much for those to groups of ‘psychopaths’.

        1. The travel ban list I saw was from Fortune. I’m seeing 31st announce date other places now. And of course Trump was criticized for it; that’s what critics do. If a Democrat had ordered it, Republicans would have been critical. There’s no shortage of psychopaths to go around.

          1. Brad, I am not in love with the Republican Party though I will vote and support Trump. In the past I have heavily criticized the Republican Party (and do so today) but in recent times the Democratic Party seems to have totally lost its direction and those on the left (Dems and others) plus a large portion of the MSM have become ‘psychopathic’. That type of personality always exists everywhere but not in the high numbers we are seeing today.

  9. Get a life! You must have a better way to spend time making America great again.

    1. Note how an ignorant anonymous poster tells Professor Turley what to do. Anonymous demonstrates a very low level of thinking.

  10. There are more outright lunatics than I thought.

    And a lot of them are on cable news.

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