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.
https://www.nationalreview.com/2020/03/department-of-justice-dismisses-robert-mueller-charges-against-russian-businesses/
Chuckles.
Always using any crisis is the hallmark of the socialist left no matter how stupid and venal it makes them sound and look. Thanks for reminding us NEVER to vote for a socialist especially one who has proven to be a reject.
MSNBC, CNN, MSM, etc .. no shortage of fake news, pure hatred, and all out idiocracy!
I am not a lawyer but I love our country and the law. Thank you professor Turley for explaining this insane premise. It does not take a legal genius to see rampant MSNBC stupidity. How do people like this expect to be taken seriously? However if we need a test case for this non existent statute I suggest Hillary for he gross negligence regarding Bengazi
“UNFIT” BY THE LINCOLN PROJECT
DOCUMENTS TRUMP’S DENIALS OF CORONA VIRUS
Anyone presenting excised snippets as the whole story
is completely untrustworthy,
and anymind willing to accept such a presentation
is rather pathetic.
“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.”
MSNBC legal analyst Glenn Kirschner has slipped his straight jacket, skipped his meds and escaped his rubber room.
Marge,you really need to read TNYT, being that it is the major newspaper of record in the USA.
— David B Benson
The Liberal Fake News outlets hate Americans. The Woke crowd will not be content until all Americans are dead except for those who voted for Hillary. Blacks who voted for GOP: DOA as far as the Left are comcerned
……
The White House then accused the media of “fake outrage” after the press conference.
Spanish Flu. West Nile Virus. Zika. Ebola. All named for places.
Before the media’s fake outrage, even CNN called it “Chinese Coronavirus.”
Those trying to divide us must stop rooting for America to fail and give Americans real info they need to get through the crisis.
– NR
German Measles
West Nile Virus
Guinea Worm
Rocky Mountain Spotted Fever
Lyme Disease
Ross River Fever
Omsk Hemorrhagic Fever
Ebola Hemorrhagic Fever
Middle East Respiratory Syndrome (MERS)
Valley Fever
Marburg Virus Disease, Norovirus
Zika Fever
Japanese Encephalitis
Spanish Flu
Lassa Fever
Legionnaire’s Disease
+ 10
👍🏽
Yeah, you’re on to me.
Rats!
Not to mention
Machupo virus
Hendravirus
Crimean-Congo Hemorrhagic Fever
Nipah virus
Hantavirus (named after the Hantaan River in Korea)
Humpty Doo virus
Bolivian hemorrhagic fever
Reston virus
Venezuelan equine encephalitis
Kyasanur Forest disease
Alkhurma virus
Guanarito virus,
Junin virus,
Lujo virus
Sabia virus,
Whitewater Arroyo virus.
Hillary Clinton’s abysmally ignorant of the history of named viruses.
Her capacity for spiteful.utterances has never been fully plumbed.
Trump Demies Denial. Claims He Recognized Pandemic Weeks Ago
For weeks, President Trump has minimized the coronavirus, mocked concern about it and treated the risk from it cavalierly. On Tuesday he took to the White House lectern and made a remarkable assertion: He knew it was a pandemic all along.
“This is a pandemic,” Mr. Trump told reporters. “I felt it was a pandemic long before it was called a pandemic.”
This is what Mr. Trump has actually said over the past two months:
On Jan. 22, asked by a CNBC reporter whether there were “worries about a pandemic,” the president replied: “No, not at all. We have it totally under control. It’s one person coming in from China, and we have it under control. It’s going to be just fine.”
On Feb. 26, at a White House news conference, commenting on the country’s first reported cases: “We’re going to be pretty soon at only five people. And we could be at just one or two people over the next short period of time. So we’ve had very good luck.”
On Feb. 27, at a White House meeting: “It’s going to disappear. One day — it’s like a miracle — it will disappear.”
On March 7, standing next to President Jair Bolsonaro of Brazil at Mar-a-Lago, his club in Palm Beach, Fla., when asked if he was concerned that the virus was spreading closer to Washington: “No, I’m not concerned at all. No, I’m not. No, we’ve done a great job.” (At least three members of the Brazilian delegation and one Trump donor at Mar-a-Lago that weekend later tested positive for the virus.)
On March 16, in the White House briefing room, warning that the outbreak would “wash” away this summer: “So it could be right in that period of time where it, I say, wash — it washes through. Other people don’t like that term. But where it washes through.”
Edited From: “Trump Now Claims He Always Knew The Coronavirus Would Be Pandemic”
The New York Times, 3/17/20
Americans are struggling, Families are stressed, people are worried to the point of high anxiety, but the NYT claims to speak for the people. They do not, never have and only care to divide our country
Thankfully no one respects the NYT except for the elitist Left
However Paint Chips on Feb 2 Trump placed a ban on Chinese travellers. That indicates he was thinking pandemic because the Chinese were all over the world travelling. Unfortunately he didn’t know the test kits being developed were faulty and probably didn’t recognize that private university labs required approval from the FDA which wasn’t fothcoming. He could not be positive but he took action. He didn’t wait like Paint Chips would have waited.
Don’t worry folks, the guy who said to rake the forests, waterbomb an 800 year-old cathedral, and nuke a hurricane has got this coronavirus thing under control.
“… Impeach Trump. This time we’ve got him! … Impeach Trump. This time we’ve got him! …”
The record player is stuck again. Can someone give it a nudge?
Dr. Fauci has said that cutting of flights from China indisputably saved lives. Of course none of them will put a number on that but let me try.
The first cases showed up in Italy and the United States around the same day in January. Since then 0.04% of the Italian population has died of this virus (3000 out of 60,000,000 in case I screwed up the zeros in that percentage calculation) whereas 0.00003% of the American population has died of this virus (110 out of 330,000,000). If Americans had died at the same rate as Italians because the flights were not cut off, 132,000 Americans would have died instead of 110.
So I guess cutting off the flights saved 131,890 lives. Charge him with Murder.
Perhaps you should make your argument on the basis of legal principle.
With all due respect I believe your have slipped some digits.
3000/60000000= 0.00005 Italian mortality rate, or as a percent .005%
0.00005*330000000 = 16500 Hypothetical US deaths when Italian mortality rate applied to US population.
Now 16,500 deaths is not insignificant. But the math error tends to undermine your credibility.
The problem is not with cutting off travel with China. The problem is with failing take the virus seriously and failing to test and isolate early. It appears that the US lost more than a month fighting the virus because of administration fumbling with calming platitudes and red tape to testing. Because of failing to test and isolate early we are now facing the prospect of exponential growth.
They obviously took the virus seriously. Cutting off travel from China is adequate proof of that. Only a simpleton would confuse Trump’s attempts at preventing panic while ignoring what was going on in the background which should be obvious now with the most extensive public/private cooperation since World War II. That did not occur overnight. Remember, Obama did not declare a health care emergency until over 1,000 Americans died from H1N1. Trump did so in January.
Trump unsuccessfully tried to offset the overblown panic and hyperbole coming from the media which resulted in people hoarding toilet paper and drinking water. Neither are relevant to corvid-19.
Testing supplies were unnecessarily restricted by existing regulations that the CDC had in place that prevented private production of those tests. I doubt that Trump, or any sane person, would have thought that to be the case. The Trump Administration has set those regulations aside, allowing mass production AND the ability of private companies to perform those tests instead of just the CDC.
Where is this fake news coming from that Trump declared a national emergency in January? I’ve seen this a few times now but I can’t find any evidence of it.
Allyn, that’s false.
“Obama’s acting director of health and human services declared H1N1 a public health emergency on April 26, 2009. That was when the United States had only 20 confirmed cases of H1N1 and no deaths.
Two days later, the administration made an initial funding request for H1N1 to Congress. Eventually $7.65 billion was allocated for a vaccine and other measures.”
The WHO declared the H1N1 a pandemic on June 11, 2009, 6 weeks after the Obama administration declared it an emergency. The Obama administration also set up a 40 person WH pandemic task force with an NSC permanent seat in which Trump dismantled in May 2018.
As to thinking that having some dumb a.shole saying we’ll be down from 15 to 0 cases in a few days when reality was nothing like that, no that’s not reassuring, that’s self serving and ignorant BS.
I think Allyn sounds quite reliable. Anon isn’t.
https://www.cnn.com/2009/HEALTH/10/24/h1n1.obama/index.html
Date of article October 26 2009
“Since the H1N1 flu pandemic began in April, millions of people in the United States have been infected, at least 20,000 have been hospitalized and more than 1,000 have died, said Dr. Thomas Frieden, director of the Centers for Disease Control and Prevention.”
Obama declares H1N1 emergency
Hundreds of residents line up for free H1N1 vaccinations Friday at a Los Angeles, California, area clinic.
Washington (CNN) — President Obama has declared a national emergency to deal with the “rapid increase in illness” from the H1N1 influenza virus.
“The 2009 H1N1 pandemic continues to evolve. The rates of illness continue to rise rapidly within many communities across the nation, and the potential exists for the pandemic to overburden health care resources in some localities,” Obama said in a statement.
“Thus, in recognition of the continuing progression of the pandemic, and in further preparation as a nation, we are taking additional steps to facilitate our response.”
The president signed the declaration late Friday and announced it Saturday.
Calling the emergency declaration “an important tool in our kit going forward,” one administration official called Obama’s action a “proactive measure that’s not in response to any new development.” Having trouble finding vaccine? Share your story
Another administration official said the move is “not tied to the current case count” and “gives the federal government more power to help states” by lifting bureaucratic requirements — both in treating patients and moving equipment to where it’s most needed.
The officials didn’t want their names used because they were not authorized to speak on the record.
Obama’s action allows Health and Human Services Secretary Kathleen Sebelius “to temporarily waive or modify certain requirements” to help health care facilities enact emergency plans to deal with the pandemic.
Those requirements are contained in Medicare, Medicaid and state Children’s Health Insurance programs, and the Health Insurance Portability and Accountability Act privacy rule.
Since the H1N1 flu pandemic began in April, millions of people in the United States have been infected, at least 20,000 have been hospitalized and more than 1,000 have died, said Dr. Thomas Frieden, director of the Centers for Disease Control and Prevention.
Watch how to find out if you have H1N1
Frieden said that having 46 states reporting widespread flu transmission is traditionally the hallmark of the peak of flu season. To have the flu season peak at this time of the year is “extremely unusual.”
The CDC said 16.1 million doses of H1N1, or swine flu, vaccine had been made by Friday — 2 million more than two days earlier. About 11.3 million of those had been distributed throughout the United States, Frieden said.
“We are nowhere near where we thought we would be,” Frieden said, acknowledging that manufacturing delays have contributed to less vaccine being available than expected. “As public health professionals, vaccination is our strongest tool. Not having enough is frustrating to all of us.”
Frieden said that while the way vaccine is manufactured is “tried and true,” it’s not well-suited for ramping up production during a pandemic because it takes at least six months. The vaccine is produced by growing weakened virus in eggs.
Sorry for the language ahead of time, but he’s an ass.