Trump was certainly carrying out his duties as president (however poorly), so he’s at no risk of criminal or civil liability. This was a moral failing. But what about activities that were specifically not official and were identified as campaign events outside his role as president?
In June, Trump held a rally in Tulsa, at a time he knew the virus was airborne and deadly. He also recently held massive indoor rallies in Nevada and Arizona in which the audiences were tightly packed together and masks were not required. Democratic Nevada Gov. Steve Sisolak was understandably furious, telling CNN’s Erin Burnett: “He didn’t care about the other thousands of people that were in there and the 3 million residents I have in the state of Nevada that are at potential of having disease transmitted because of what he did.” He added, “He only cares about himself.… He chose to show callous disregard in a reckless, selfish, irresponsible way. There is no other way to put it.”
Even some Republicans are nervous about Trump drawing crowds, according to a New York Times report:
[The] decision to forge ahead created a wave of internal backlash, including from a top Trump adviser who said the president was playing a game of Russian roulette in holding the indoor rally. The adviser, who requested anonymity so as not to anger Mr. Trump, said the campaign was taking a cavalier approach to the pandemic that could backfire politically. Some of the president’s most vocal defenders outside of the administration agreed.“Indoor rallies are irresponsible,” Ari Fleischer, a former White House press secretary for President George W. Bush and a frequent defender of Mr. Trump’s, wrote on Twitter. “Covid-19 is real and this was a bad idea.”
Xtreme Manufacturing, the company that put on the event in Henderson, Nev., was fined $3,000 for violating state restrictions on gatherings of 50 or more people. The owner of the venue declined to comment on the fine at a news conference but said it was his “patriotic duty to do what is right for our country, and what is right is supporting President Donald J. Trump.” Another hotel he owns was previously fined more than $10,000 after hosting an “Evangelicals for Trump” campaign event that “exceeded the state limit and also violated some city health restrictions.”
Should a repeat offender who knowingly violates health laws designed to prevent infection and death be held legally responsible for illnesses or deaths attributable to their functions? This would essentially be the same thing as a restaurant knowingly violating state food safety laws, resulting in the illness or death of its patrons. The only difference would be the challenge of proving causality (that the disease was contracted at campaign event).
This raises questions about what accountability Trump and his campaign officials should face for events in which they crowd people into an indoor facility in violation of health state requirements. Remember: Trump is explicitly not acting in his official capacity at these events — these are campaign events paid for by his campaign. There is no shield of immunity that would prevent legal action after he leaves office and no federal pardon available for violations of state criminal law or for civil penalties.
Criminal liability raises issues of intent (or reckless disregard for human life, the standard in homicides other than intentional murder) and causation. Civil liability raises other questions, including whether individuals assumed the risk of attending. Nevertheless, the law in principle does prohibit reckless endangerment of human life.
Constitutional expert Laurence Tribe explains, “I think Donald Trump’s deliberate exposure of people attending his rallies without masks and without social distancing, given all he has admitted on tape that he knows about how covid is transmitted and how deadly a virus it is, would qualify for state criminal prosecution.”
Tribe dismisses arguments that Trump’s rallies are protected by the First Amendment by describing the events as more akin to “tossing firebombs into a crowded theater than merely shouting ‘Fire!’ when there is none and causing a deadly panic.” He adds, “Trump is literally creating a situation in which his audience of thousands ought to be running for the exits to minimize the risk that they will at least become spreaders of a deadly virus but will instead remain in place while Trump holds their attention long enough to make many of them sick. That’s civilly and criminally actionable as reckless endangerment, in my view.”
In any event, there is no reason for responsible governors to delay putting the president on notice. They should make clear that they will seek all available civil penalties (in addition to what litigants can obtain in private suits) and investigate any possible instances of negligent homicide in connection with events that willfully expose state residents to known, deadly health risks.
That we are even discussing the liability of the president for willfully exposing people to a deadly disease is shocking. But remember, this is a small part of his decision to withhold information that could have saved tens of thousands of lives. In essence, he has been exposing Americans since February to the risk of infection and death for his own personal benefit. The families of nearly 200,000 dead Americans will not forget, and neither should the rest of us.