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.”
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