Saturday, October 17, 2020

Barrett Won't Pull Away From Trump's Coattails

           President Trump’s Supreme Court appointee, Judge Amy Coney Barrett, asked the Senate Judiciary Committee last week [Oct. 14] to trust in her independence and integrity if confirmed to the Court. Barrett’s evasions on any questions touching on Trump’s views, however, provide good reason for doubting her independence from Trump if seated to join the five other Republican-appointed justices.

            Barrett made her plea as Democratic senators, including Delaware’s Chris Coons, pressed for a promise to recuse herself from the election-related litigation that Trump promised to bring to the Supreme Court almost in the same breath as he was nominating Barrett. “I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people,” she said on Tuesday [Oct. 13], in the first of her three days of questions from the Republican-majority committee.

            The recusal issue was one of at least five lines of questions from Democrats that gave Barrett easy options to pull herself away from Trump’s coattails. But she begged off on each one, by hiding behind the need to avoid opining on what she described as “contentious” public policy issues or on legal questions that might come before her as a  justice.

            Her non-answer on the recusal issue was especially inane. She promised not to make the decision for herself but to decide only after consulting with her colleagues—supposedly the standard practice for justices pressed for recusal because of some possible conflict of interest. It must be noted that the Roberts Court has divided along partisan lines in several election-related cases over the past year.

When Trump v. The American People reaches the Court, the five Republican-appointed justices, including Trump’s previous two appointees, may well want or need Barrett’s vote to solidify a majority for the petitioner president. Indeed, think back to Bush v. Gore when Justice Sandra Day O’Connor, a Bush supporter, gave the Republican-appointed conservatives the needed vote to end the Florida recount that might have cost Bush the election.

Republican senators offered Barrett a rationale for non-recusal in the eventual Trump case by noting that President Clinton’s two appointees, Ginsburg and Breyer, were not pressed to recuse themselves several years after their appointments when Clinton v. Jones reached the Court. In fact, Ginsburg and Breyer both voted in the eventually unanimous decision against Clinton’s plea for immunity from civil lawsuits while serving as president.

The other issues that Barrett ducked included voter intimidation, climate change, systemic racism, and the president’s pardon power. Barrett must have seen that the easy answer to each of those questions would have generated mini-headlines separating herself from Trump’s positions. In that regard, it is worth recalling that as Supreme Court nominee, then-Judge Neil Gorsuch showed at least enough integrity to distance himself from Trump’s criticism of the “Mexican judge” who was presiding over the civil lawsuit against Trump University.

Minnesota’s Amy Klobuchar noted to Barrett that the Trump campaign is recruiting individuals with “special forces” experience to act as poll watchers on or before Nov. 3. Klobuchar asked, in effect, whether the presence of armed poll watchers would amount to voter intimidation under federal law. Barrett hid her non-answer behind a legalism. “I can’t characterize the facts in a hypothetical situation,” she said.

Barrett was similarly agnostic when asked whether she believes that climate change is occurring, as all reputable scientists believe. Barrett surely knows that her presidential benefactor has described climate change as “a hoax.” Had she indicated agreement with scientists instead of with the non-scientist Trump, the headline writes itself: “Barrett Clashes With Trump on Climate Change.”

Barrett similarly avoided directly acknowledging to New Jersey’s Cory Booker the presence of systemic racism in the criminal justice system today. Again, Trump and his attorney general, William Barr, have resisted any generalized acknowledgment of racism in criminal justice. With her non-answer, Barrett aligned herself with the Trump administration non-position.

With Trump under investigation for possible criminal prosecution by the New York City district attorney’s office, Trump might be considering trying to pardon himself as he leaves the White House after failing re-election. Under questioning by Vermont’s Patrick Leahy, Barrett declined to opine on what she called “an open question” about the president’s self-pardoning power. Still, she might at least have quoted the centuries-old Latin maxim “Nemo judex in causa sua” (no one can be a judge in his own case) as casting doubt on the supposed self-pardon power.

Barrett was given another opportunity to demonstrate her integrity in an open letter signed by more than 80 Notre Dame faculty members urging her to withdraw from the nomination altogether because of what the academics called “the anti-democratic machinations driving your nomination.” Barrett was not asked about the letter during the hearings and has said nothing on the record even to indicate that she has read it. Suffice it to say that one way to prove her integrity would be to renounce the reward that Trump has offered her in a Faustian bargain.

Sunday, October 11, 2020

Barrett Poses Risk to Rights, Public Health

           Judge Amy Coney Barrett appears to be on her way to becoming the next associate justice of the Supreme Court on the United States. If Republicans have their way, she may take her seat early enough to cast a decisive vote to throw out the Affordable Care Act and leave millions of Americans without health insurance in the midst of the coronavirus pandemic.

            The Court is currently scheduled to hear arguments in that case on Nov. 10, one week after the election. The Trump administration is supporting the argument by red states led by Texas that Congress effectively eliminated the act’s individual mandate in 2017 and for that reason the entire law must be thrown out.

            With 47 seats, Senate Democrats s may not have the votes to block or delay Barrett’s confirmation in either the Judiciary Committee or on the Senate floor, but they can use the confirmation hearings that begin on Monday [Oct. 12] to underline the risk that Barrett’s confirmation would pose to individual rights and to public health. Barrett has previously criticized Chief Justice Roberts for his pivotal vote in 2015 to uphold the act.

            In advance of the hearing, Republicans are playing down the issue that President Trump put at the top of his Supreme Court agenda: overruling the landmark abortion rights decision, Roe v. Wade. As one example, the Washington Post noted in a story [Oct. 9]  that Iowa’s Republican senator Joni Ernst described the chances of overturning Roe v. Wade as “very minimal” in a Sept. 28 debate with her Democratic opponent.

            The reproductive rights organization NARAL is emphasizing that in fact the anti-Roe v. Wade position is politically unpopular. Despite the anti-abortion lobby’s unceasing attacks on the 47-year-old decision by a 7-2 Supreme Court, most Americans do not want to see it overruled. In the most recent poll, NBC News found that 66 percent of Americans surveyed do not want to see the decision overruled and, in fact, that Republicans are “virtually split” with a bare 50 percent majority in favor of reversing the decision.

            Barrett, a member of Faculty for Life when she was a law professor at Notre Dame, has taken the minority position on this issue for years—for example, in a political advertisement in Indiana in 2006 that denounced “the barbaric legacy” of the decision and called for it to be overturned. Whether inadvertently or intentionally, Barrett omitted mention of having signed the advertisement.

Years later, however, Barrett soft-pedaled her stance somewhat in a speech at Notre Dame in 2013. "The fundamental element, that the woman has a right to choose abortion, will probably stand," she said. Three years later, she acknowledged the possibility of further restrictions on abortion rights. "I don't think abortion or the right to abortion would change,” she remarked in 2016. “I think some of the restrictions would change."

            As a federal appellate judge, Barrett dissented from a Seventh Circuit decision that struck down an Indiana law prohibiting abortions for the purpose of sex selection. Reproductive-rights groups always emphasize that provisions such as that one inevitably mean that the government gets to cross-examine a woman about her reasons for wanting to terminate a pregnancy. So much for the right to choose!

            Barrett, it must be remembered, has written that her notion of originalism overrides the legal principle of stare decisis—respect for precedent. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in a law review article in 2013.

            Senate Democrats can usefully remind Barrett of Chief Justice Roberts’ description of Roe v. Wade in his confirmation hearing as settled law and ask whether she agrees. Barrett is likely to evade the question, but Democratic senators may want to note that Louisiana and Texas both enacted laws that could have reduced the number of abortion clinics in each state to only one. Fortunately for access to abortion services, the Court struck down both laws by 5-4 votes; as Ginsburg’s successor, Barrett would provide a critical vote for upholding similar restrictions.

            In an alternate universe, the Republican senators who four years ago blocked Merrick Garland’s nomination to the Supreme Court eight months before the 2016 presidential election would be too embarrassed by the rank hypocrisy of pushing Barrett’s nomination barely one month before this year’s election. In this real world, however, Republicans have no principles and no capacity for shame.

            The Democratic vice presidential nominee, Senator Kamala Harris, raised this issue one last time in the vice presidential debate [October 7] by noting as historical precedent President Lincoln’s decision shortly before the 1864 presidential election to delay filling a Supreme Court vacancy until after the election. “American people are voting right now,” Harris said. “It should be their decision as to who should have a lifetime appointment to the Supreme Court.”

 In fact, a dozen polls indicate that most Americans want the vacancy to be filled by the winner of the 2020 presidential election. In that regard, Democratic senators should press Barrett very hard on whether she will recuse herself – as she ought to – from any litigation brought by her benefactor Trump to contest Nov. 3 election results.

Sunday, October 4, 2020

In Texas, New Move on Voter Suppression

          In Texas, the state’s Republican governor Greg Abbott came up with a new technique of voter suppression last week [Oct. 1] by directing two of the state’s predominantly Democratic counties to reduce the number of drop-off boxes for voters to deposit absentee ballots in advance of Election Day.

            Abbott issued his proclamation two days after President Trump used the first presidential debate [Sept. 29] to repeat his call for supporters to assemble at polling places on Election Day, ostensibly to guard against voter fraud. The Texas governor similarly described his proclamation as an effort to “strengthen ballot security protocols throughout the state.”

            Two Democratic counties were immediately affected by Abbott’s order that all of Texas’s 250 counties limit the number of ballot drop-off boxes within their expansive borders. Travis County, which includes the state capital of Austin, had to eliminate three of the four drop-off boxes already in place; Harris County, which includes the nation’s third largest city, Houston, had to get rid of eleven of its twelve drop-off boxes.

Democratic officials in both counties immediately criticized Abbott’s move as amounting to voter suppression. Voting rights groups filed federal court suits the next day challenging Abbott’s proclamation as a violation of the federal Voting Rights Act.

            Texas now joins several other battleground states with litigation over actions being taken to ease mail voting in the midst of a pandemic that makes in-person voting hazardous to voters’ health. Two of those cases – one from Pennsylvania and another from Arizona -- are now at the Supreme Court, which divided along partisan lines in a Wisconsin case in April in blocking a federal court order opposed by GOP legislators to extend absentee ballot deadlines.

Republican officials waging those legal battles echo Trump’s unsubstantiated warnings about likely fraud with expanded mail voting. Federal judges, however, have generally dismissed the allegations and allowed election officials, for example, to extend deadlines for receiving ballots given the likelihood of delays in the mails.

             In the most recent ruling, a federal judge in Montana rejected an effort by the Trump campaign and GOP officials in the state to block the state’s 56 counties from conducting the Nov. 3 election by mail. In rejecting the suit, U.S. District Court Judge Dana Christensen, an Obama appointee who served as chief judge for seven years, noted that the GOP officials “were compelled to concede that they cannot point to a single instance of voter fraud in Montana in any election during the last 20 years.”

            In Texas, a spokesperson for Abbott was described by The Texas Tribune as failing to explain how multiple drop-off ballot boxes could lead to voter fraud. In Travis County, the county clerk Dana DeBeauvoir described Abbott’s proclamation as “a deliberate effort to manipulate the election.” In Harris County, the county’s chief executive Lina Hidalgo echoed that view. “This isn’t security, it’s suppression,” Hidalgo said.

            Trump carried Texas, with its 38 electoral votes, by a 9 percentage point margin in 2016. His Democratic opponent, Hillary Clinton, carried Harris and Travis counties by substantial margins. In the most recent polls, Trump leads the Democratic nominee, former vice president Joe Biden, by an average of 2.5 percentage points.

            With only one month before the Nov. 3 election, the federal court suits challenging Abbott’s order may not move fast enough to allow the two counties to re-establish some of the drop-off boxes that have been removed. The groups that filed the suits include the Texas and National Leagues of United Latin American Citizens, the League of Women Voters of Texas, and the Texas Alliance for Retired Americans.

            Also last week, Republican legislators in the key battleground state of Pennsylvania asked the Supreme Court to intervene to stop a decision by the state’s high court to count mail-in ballots received up to three days after Election Day. The GOP lawmakers who filed the application in Scarnati v. Boockvar on Monday [Sept. 28] contended that the state court’s decision, aimed at accommodating likely mail delays, intruded on the legislature’s authority to set election rules.

            Trump carried Pennsylvania with its 20 electoral votes by a 44,000-vote margin in 2016. Current polls show Biden with a 5.8 percentage point lead over Trump in the state. Pennsylvania is listed along with Michigan and Wisconsin as among the states crucial to Trump’s Electoral College victory in 2016 despite losing the nationwide popular vote by nearly 3 million votes.

            The Supreme Court took up another election-related case at the end of the week [Oct. 2] by agreeing to hear a plea by Arizona’s Republican attorney general to uphold two election laws struck down by a federal appeals court on the ground that they discriminated against minority voters. One of the laws requires election officials to discard ballots cast at the wrong precinct; the other makes it a crime for campaign workers, community activists, or others to collect ballots for delivery to polling places.

            In striking down the “ballot collection” law, the en banc majority of the Ninth U.S. Circuit Court of Appeals stated that there was “no evidence of any fraud in the long history of third-party ballot collection in Arizona.” The appeals court stayed its ruling; so the laws remain in effect for the Nov. 3 election. The justices’ decision to review the case, Brnovich v. Democratic National Committee, tees it up for oral arguments early next year and a decision by the end of June.


Sunday, September 27, 2020

Donald Trump versus Democracy on November 3

            President Trump’s repeated refusal to abide by the results of the presidential election puts American democracy at risk to an extent unseen since the time of the Great Depression in the 1930s.

Republican senators who have enabled the worst of Trump’s excesses in the White House have tried to dispel doubts about a peaceful transition of power after Trump’s looming defeat. Those reassurances are empty of content, however, in the face of Trump’s ability to marshal federal resources and his political base to try to thwart the will of the American voters.

            Trump’s bag of tricks to neutralize a second popular-vote loss, possibly much larger than his 2.8 million vote deficit to Hillary Clinton in 2016, includes vote suppression, voter intimidation, and vote-counting litigation and confusion after Election Day. He set the stage for challenging election results at the Republican National Convention in August by declaring that the only way he could lose was to “a rigged election.”

            His Democratic opponent, former vice president Joe Biden, had already warned as early as the spring that Trump would try to steal the election. Biden’s Democratic primary opponent, Vermont’s blunt-spoken independent senator Bernie Sanders, stepped up the rhetorical heat on the issue in a speech last week [Sept. 24] at George Washington University.

            “This election is not about Joe Biden versus Donald Trump,” Sanders declared. “This is about Donald Trump versus democracy.”

            Level-headed election experts and historians are warning of a constitutional crisis that can spread through courtrooms in several states and even into the streets. “We could well see a protracted postelection struggle in the courts and the streets if the results are close,” says Richard L. Hasen, the nation’s pre-eminent election law expert and a professor at the University of California-Irvine Irvine School of Law.

Trump’s campaign organization is actively recruiting “an army” of supporters to help police potential voter fraud at polling place. Virginians in suburban Washington, D.C., got a taste of what is to come when early voters waiting in line for hours in Fairfax County were met by a throng of Trump supporters carrying Trump-Pence placards in seeming defiance of rules against electioneering at polling places.

Hasen has been warning of the dangers to electoral democracy all year, ever since he published his book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press) in February. Hasen identified four factors threatening the integrity of the 2020 election: voter suppression; incompetence in election administration; misinformation campaigns; and inflammatory rhetoric undermining faith in the integrity of elections.

A new threat to the election has now been reported in a disturbingly well-documented article by Barton Gellman, a staff writer with The Atlantic, published online last week [Sept. 23] under the headline “The Election That Could Break America.” Gellman envisions a scenario that leaves the results of the election in doubt not only for the days of late ballot-counting in November but even into an extended interregnum that ends in Congress or at the Supreme Court, with two or perhaps three Trump-appointed justices.

Republican-controlled legislatures in battleground states might designate Trump-pledged electors whatever the results of the popular vote in the state. States have until December 8, thirty-five days after the election to make those designations. In his story, Gellman reported that Republican legislators in Pennsylvania are already discussing this scenario. As of late September, Biden leads Trump by 5 percent or more in pre-election polls in the Keystone State.

Gellman went on to note that Republicans control both legislative chambers in six of the most closely contested battleground states: Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin. Four of those states have Democratic governors — all but Arizona and Florida — who might be in a position to thwart the GOP legislators’ effort by certifying electors in line with the popular vote.

Trump would remain as president throughout, up to January 20, with the power to direct his lapdog attorney general William Barr to send Justice Department attorneys into courtrooms to buttress challenges to vote counts. Vice President Mike Pence would be the presiding officer in a Republican-majority Senate with the power to rule on electoral vote challenges.

Gellman warns that whatever happens, Trump will not concede defeat, just as losing presidential candidates have done gracefully and respectfully ever since William Jennings Bryan acknowledged his loss in 1896 to William McKinley. Gellman, who worked in Al Gore’s 1988 presidential campaign, also recalls that Gore bowed to the Supreme Court’s decision in Bush v. Gore even with some avenues for legal challenges still open to him.

“Donald Trump may win or lose, but he will never concede,” Gellman writes. “Not under any circumstance. Not during the Interregnum and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.”

Trump’s MAGA-wearing supporters will believe him, just as they now believe his contrafactual warnings that mail ballots inevitably entail widespread voter fraud. Trump continues to call mail ballots a “scam” even as military service members use the time-honored procedure to exercise their rights. Republican campaign aides have been out in force already criticizing “activist judges” who extend deadlines for mail balloting in deference to what is expected to be an unprecedented crush of by-mail voting.

Polls indicate that Democrats are more likely to vote by mail than Republicans; thus, any  challenges to late-arriving mail ballots are likely to disqualify more Democratic votes than Republican votes. In battleground states, those challenges could spell the difference between a Biden victory or a Trump victory: imagine a Florida-like recount that turns not on hanging chads but on voting-by-mail postmarks.

Saturday, September 19, 2020

Ruth Bader Ginsburg: Pioneer for Gender Equality

            Ruth Bader Ginsburg paid tribute to her mother when President Bill Clinton introduced her as his nominee for the Supreme Court in 1993. Celia Bader died of cancer when her pretty daughter Ruth was about to graduate from high school at her age 17. And now, after 27 impactful years as a Supreme Court justice, Ruth too has succumbed to cancer. 

            “I pray that I may be all that she would have been,” Ginsburg said of her mother, with Clinton smiling proudly beside her, “had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”

            In her younger years, in her 40s, Ginsburg had already played the critical part in making a reality of that aspirational hope. She created, all but single-handedly, the constitutional principle that women are entitled under the law to equal rights, an intellectual revolution as significant as the still unfinished civil rights revolution for racial justice.

            Ginsburg made her mark as a gender equality pioneer and as judge and justice by determination and perseverance, a keen intellect, and fortitude in the face of adversity. Her only-in-America story took her to Cornell on a scholarship and then to Harvard and Columbia law schools. But after graduating from Columbia tied with first in her class, she found her career blocked, as she herself put it, by three marks against her: a woman, Jewish, and mother of a young child.

            In successfully litigating three cases in the Supreme Court in the 1970s, Ginsburg established the principle that the law can treat women differently from men only under limited circumstances and for some compelling reason. In the first of those cases, she overcame what seemed at the time the natural assumption that a father should be automatically favored over a mother as the executor of a deceased child’s estate.

            After her death on Friday night [Sept. 18], Clinton’s close aide Paul Begala recalled on CNN that the president introduced Ginsburg to him as “the Thurgood Marshall of the women’s movement.” In her obituary in The New York Times, the veteran Supreme Court correspondent Linda Greenhouse recalled that Ginsburg resisted the comparison by noting that she had never had to risk her life as Marshall had done in his cases in the 1940s and ‘50s.

            In introducing her, Clinton described Ginsburg as “scrupulous,” “balanced and fair,” and “too thoughtful” to be pigeonholed as conservative or liberal. She had already gained that reputation through twelve years of service on the federal appeals court for the District of Columbia Circuit. And she went on to enhance that reputation on the Supreme Court, where her opinions and her questions from the bench were always thoughtful, rigorously logical, to the point, and free of ideological rhetoric or recrimination.

            Among her majority opinions, Ginsburg most significantly fortified the gender equality principle by speaking for a 7-1 majority in striking down the all-male admissions policy at Virginia Military Institute (VMI). Ginsburg praised VMI in her majority opinion in United States v. Virginia (1996) as “an incomparable military college” and concluded that because of its excellence the school’s program must be equally available to “women seeking and fit for a VMI-quality education.”

            Other commentators have already recalled Ginsburg’s pointed dissents from decisions that cut back on women’s autonomy in reproductive choices. Dissenting for example in Gonzales v. Carhart (2007), Ginsburg complained that the majority opinion, joined by five male justices, "recalls ancient notions about women's place in society and under the Constitution—ideas that have long since been discredited."

            Among others that stand out in my mind was her dissent when the 5-4 majority in Missouri v. Jenkins (1996) cut a plan to remedy racial segregation in Kansas City schools. “Given the deep, inglorious history of segregation in Missouri,” Ginsburg wrote, “to curtail desegregation at this time and in this manner is an action at once too swift and too soon.”

            In her confirmation hearing, Ginsburg described herself as an advocate of judicial restraint. She was no judicial activist, as seen in her criticism of Roe v. Wade as going further than necessary to rule on the Texas law at issue. Instead, Ginsburg’s approach was as she described it in her confirmation hearing by quoting an admonition from Justice Cardozo. “Justice is not to be taken by storm. She is to be wooed by slow advances.”

            Her colleagues deferred to Ginsburg’s rigorous logic often by assigning her decisions that posed complex procedural issues. Thus, in what proved to be her final term, she led a slightly fractured unanimous decision in Monasky v. Taglieri (Feb. 25) that laid down guidelines for deciding child custody disputes among separated parents living in different countries.

            In her final opinion, Ginsburg complained in dissent in Little Sisters of the Poor v. Pennsylvania (July 8) of the effect on women’s health options of upholding an expansive religious exemption for employers to deny employees cost-free contraceptive coverage. “I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.”

            By Jewish tradition, it was fitting that Ginsburg, the most observant of the three Jewish justices, died around sunset on Rosh Hashanah, the first day of the Jewish new year. The Jewish tradition regards someone who dies on Rosh Hashanah as a “tzaddik,” a person of great righteousness. May her memory be a blessing!

Saturday, September 12, 2020

On Virus, a Presidential Duty to Warn?

            Anybody with a lick of sense knew back in February and March that President Trump was misleading Americans about the health risks from the novel coronavirus as it started to spread through the United States. Now, thanks to Trump’s own words in taped interviews by the legendary journalist Bob Woodward, we know for a fact that Trump was knowingly and intentionally downplaying the health risks even after a warning about the risks from his own national security adviser.

            Trump sprang to attention, according to Woodward’s reconstructed account after national security adviser Robert O’Brien warned in an intelligence briefing on Jan. 28 that the novel coronavirus would be “the roughest thing you face.” O’Brien’s deputy, Matthew Pottinger, went further by forecasting a worldwide pandemic that could equal the 50 million deaths from the flu pandemic of 1918.

            Trump acknowledged and actually boasted to Woodward, in a tape recorded interview on March 19, that he was deliberately downplaying the public health risks, supposedly to avoid a public panic. “I wanted always to play it down,” Trump told Woodward in the interview. Three weeks earlier, the president had declared at a news conference that the virus “was a little like the regular flu” and that a vaccine would be ready “in a fairly quick manner.”

Trump knew by then, according to Woodward’s tapes, that the virus was worse than a “strenuous flu” and that it spread rapidly and easily. “You just breathe the air and that’s how it’s passed,” he told Woodward in a phone call on Feb. 7. In a news conference later, however, Trump told Americans something else. “I think the one thing nobody really knew about this virus was how contagious it was,” he said in the March 31 presser.

Trump had no actual concern about reassuring fearful Americans, of course. His real concern was the effect that public panic might have on the stock market and thus on his chances for re-election. As political strategy, Trump’s focus on minimizing public panic has been a dismal failure: witness the 60 percent public disapproval of his handling of the pandemic. It has also been a public health catastrophe, as seen in the 190,000 deaths in the United States so far, the most of any developed nation.

Beyond politics, however, Trump’s knowing and deliberate deception of the American public implicates a legal principle that is central to contemporary American law: the duty to warn. Law students learn in their first-year torts class that a manufacturer that makes a dangerous product or a dealer that sells a dangerous product can be held liable for any injuries or deaths for failing to warn consumers of risks to health or safety.

            A company that adopted Trump’s strategy of playing down the safety risks of its product might be on the hook for millions of dollars in civil damage suits. In an egregious case, corporate executives might even face criminal prosecution for concealing health and safety risks.

For several reasons, however, Trump is beyond the reach of either civil law or criminal law. The Supreme Court held in 1982 that presidents enjoy absolute immunity from civil liability for any actions taken in their official duties (Nixon v. Fitzgerald). Roger Schechter, who teaches torts at George Washington University Law School, notes that apart from that decision, hypothetical plaintiffs would face legal hurdles in trying to prove in court that the president’s failure to warn was the “proximate cause” of their succumbing to the virus.

Apart from individual cases, it is impossible to know how many lives might have been saved with more forthright warnings from the White House. Researchers at Columbia University estimated that 36,000 lives could have been saved, while Thomas Haseltine a professor at Harvard Medical School, ventured his guess on CNN last week {Sept. 10] that 180,000 lives could have been saved.

 Trump himself is unfazed and unabashed by the statistics. “It’s an amazing job we’ve done,” he declared at a White House briefing as Woodward’s accounts were dominating the day’s news cycle. Whatever the number, this much is true: “Trump lied; people died.”

Thomas Frieden, who headed the Centers for Disease Control and Prevention under President Obama, used his appearance on CNN the same day to suggest what Trump should have done. “We know how to avoid panic,” Frieden said. “Give people concrete, practical things to do”—social distancing and masks, for example. “That means leveling with the American people and telling them what we know when we know it.”

As for criminal liability, Trump is also protected from any legal consequences from his deceptions. The Justice Department’s Office of Legal Counsel concluded during the Watergate era that the president is immune from criminal prosecution for official actions; the Justice Department reaffirmed that position during the events leading up to the Trump’s impeachment trial.

            With legal consequences ruled out, it’s up to American voters to hold Trump accountable for his leadership failures on Election Day. Woodward’s accounts may not move the needle, but they may blunt Trump’s efforts to reverse Biden’s seven percentage point nationwide lead in public opinion polls.

            Narcissistic to the end, Trump used his final interview with Woodward on July 21 to deny any responsibility for the disastrous consequences of his mishandling of the pandemic. “The virus has nothing to do with me,” Trump told Woodward. “It’s not my fault.” So much for Truman’s famous admonition: “The buck stops here.”