I read an article yesterday asking why America doesn’t prosecute Trump for his handling (nonhandling) of the pandemic. We all know what he did and didn’t do, and that that the USA is the world Covid leader, with deaths stalking the half million mark.[1] We also know that Americans move on. It’s what we do — it’s the American way. But that’s not why we wouldn’t try to hold Trump accountable. The truth is, even it we wanted to, we can’t – our law prevents it.
If we were talking about you or me, what are the options for holding us accountable? You read people saying Trump meant for all those people to die, to cull vulnerable populations. If you or I did that, our intent to do that would make it murder or manslaughter.
But he didn’t have to mean it, he could have just been incompetent, like being unqualified for the job. Or he could have actually believed his own fake truth don’t worry this will take its course and be over before you know it, hey look at me I had it and it wasn’t so bad, and besides it’s all China’s fault. Or gee, I was busy golfing that day and my mind was somewhere else. In other words, he could have just been negligent instead of intentional. And again, if that were you or me, we’d be in deep doo-doo.
Here’s a sample of how the law defines criminal negligence, which is the worst kind of negligence there is and therefore is the hardest to prove:
“To be guilty of criminally negligent homicide, the defendant must fail to perceive a substantial and unjustifiable risk that a certain result will occur, and the risk must be of such a nature that the defendant’s failure to perceive it constitutes a gross deviation from a reasonable person’s standard of care.”[2]
What do you think of those key phrases?
- “The defendant must fail to perceive a substantial and unjustifiable risk that a certain result will occur.”
- “And the risk must be of such a nature that the defendant’s failure to perceive it constitutes a gross deviation from a reasonable person’s standard of care.”
Do you think a “reasonable person” have noticed that death was “a substantial and unjustifiable risk” of ignoring a pandemic? Would a reasonable person’s “standard of care” suggest that it might have been a good idea to try to prevent disaster if you were in a position to do so? Seems reasonable. (And BTW, “reasonable” in this context doesn’t refer to what reasonableness-impaired nutcases think is reasonable. Instead it means what a… well, um, let’s say a more um, normal person – like one who’s capable of empathy — might think.)
The standard of care that applies when people throw around the word “negligence” is for lawyers to argue about, but at the very least, does a gut-level response suggest that there might be something unreasonable and uncaring about ignoring a plague?
Sure, yeah, okay, well maybe. But “gross” negligence means something special under the law. Gross negligence is not just your everyday plain vanilla run-of-the-mill inattentiveness – not just oh-gosh-I-guess-I-wasn’t-paying-attention-I’m-so-forgetful-sometimes negligence. Gross negligence is really trying to be incompetent negligence – it’s talk to the hand, can’t you see I’m busy here negligence.
Gross negligence, normal negligence… really trying to be blind when anybody who’s breathing would have noticed things weren’t going to go well if you just ignored the whole thing and hoped it would go away… none of those kinds of negligence make any difference. Turns out that Presidents get to be as negligent as they want.
Yes, that is gross. But it’s also the law.
And something else that doesn’t matter is whether what Trump did or didn’t do actually caused those deaths. Like standard of care, causation is something else for lawyers to argue about – that’s what law school is for, to teach lawyers how to do that. Okay fine. But for Presidents, ignoring a plague to the point where hundreds of thousands of citizens in a country you’re supposed to be in charge of die unnecessarily, well that’s just fine. And the rest of us can just go ahead and assume all the very worst things possible and Trump still gets a get out of jail free card.
Why?
Because under U.S. federal and state law, a President can do no wrong.
Let’s take a moment for that to sink in.
Now one more time with felling: Under U.S. federal and state law, a President can do no wrong.
And it’s not just the President, it’s everybody else who’s a — what’s that phrase? oh yeah, “public servant” – none of them can do wrong either. Donald Trump, Ted Cruz, Josh Hawley, Lauren Boebert… all of those public servants… none of them can do wrong.
Seriously. That’s what our law says.
I still remember the moment when I was sitting in a law school class learning about this. “Government needs to be free to govern,” my law professor explained. Okay, got it. It’s a tough job, but somebody’s got to do it. We hold people accountable, nobody’s going to want to do it. Better give them unlimited Mulligans than not have them in Washington working hard on our behalf.
The legal doctrine is “sovereign immunity.” It’s part of American law because when we started our country we brought English common law with us, because it was easier to do that than start from scratch. And English common law said “the king can do no wrong.”
“Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune to civil suit or criminal prosecution.”[3]
“Sovereign immunity finds its origins in English common law and the king’s position at the ‘apex of the feudal pyramid.’ In that pyramid, lords could not be sued in their own courts, ‘not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.’ Thus, lords could only be sued in the courts of their superiors, but, for the king, ‘there was no higher court in which he could be sued.’” [4]
“The theory of the divine right of kings lent support to the proposition that the king was above the law-that he was in fact the law-giver appointed by God, and therefore could not be subjected to the indignity of suit by his subjects…. [Sir William Blackstone, author of the famous Blackstone Law Dictionary, said that] ‘Besides the attribute of sovereignty, the law also ascribes to the king in his political capacity absolute perfection… The king… is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness.’”[5]
Nice to know that our legal system is doing its part to keep the feudal pyramid intact.
Nice to know that the king in his political capacity is absolutely perfect.
Nice to know the President is, too.
And can we talk for a moment about “divine right”? The Divine Right of Kings was a favorite doctrine of the first King James of England –King James as in the King James version of the Bible.[6] It makes sense that somebody who has a Bible translation named after him would know about Divine Right. Export Divine Right to this side of the Pond, and now you’ve got Presidents and members of Congress and the whole scurvy bunch getting to act like they’re the King of England: incapable of doing wrong, incapable of even thinking wrong or meaning to do something improper, because in them is no folly or weakness.
Hmmm, sounds just like Trump and his cronies.
And can we also talk about the Bible that says God has made “him [that, is mankind] a little lower than the angels” and “crowned him with glory and honor” and “has given him dominion over the works of your hands,” and “put all things under his feet.” Psalm 8: 4-6 (There’s a reason why Biblical language is male-biased: God Himself is a him – “a man of war” to be exact. Exodus 15:3) That’s the Bible that says, God has made him “A little lower than angels.” All disrespect intended, that’s a lie. The way it works is that God is way up there, the rest of use are way down here, and the ones a little lower than the angels are the people in government. Angels, when they’re not dancing on the heads of pins, get to be Death Angels and destroy people and things. The President and his enablers get to do likewise. The rest of us? Only in your dreams, pal – as the insurrectionists who stormed the Capitol are learning.
No wonder people want to be rich and powerful: you get the adult version of a permanent hall pass. Turn a virus loose? No problem. Wage endless wars? You got it. Sic SS troops on Black Lives Matter protestors? Rock on, baby. You can get away with stuff now. Don’t like the service? Buy the place and fire the manager. No more nagging internal voice that says be careful what you say and do. God bless the child’s that’s got his own”[7] – that’s you, my friend, now get out there and sing “I did it my way”[8] all the way to the bank.
If we were honest, when the adults ask us what we want to be when we grow up, we’d all answer “I want to be God.” The more timid might wonder if they can be God without having the whole world in their hand, but they don’t need to worry, the best part of being God is nobody can put you on their naughty and nice list. You can theoretically have the whole world in your hands, but what you do or don’t do with it is all up to you.
And don’t tell me that the Man at the top of the cosmic pecking order has an internal moral compass that makes Him be nice and just and truthful, that sure He has His moments (like ordering genocide and authorizing rights of rape for his troops) but his love really is everlasting and his mercy really does endure forever.
Sorry, but I’ve read that book many times, and I know better.
True, the government can waive its own sovereign immunity,[9] and believe it or not that has actually happened before: “The federal government did this when it passed the Federal Tort Claims Act, which waived federal immunity for numerous types of torts claims.”[10]
What do you suppose are the odds it could happen again, this time around?
Yeah, me neither.
So the reason why Americans aren’t suing Trump over Covid is not because we’re acting like Americans and letting bygones be bygones and calling for unity so we don’t slow down the march of progress that is our manifest destiny, it’s because we can’t. And we can’t because the Bible tells us so.
So the real culprit isn’t the Bible’s God, it’s the Bible, and in particular it’s the Bible’s worldview that thousands of years later still dominates our thinking about how life works, still undergirds our country, still explains why “Amazing Grace” gets sung at Inaugural festivities as a patriotic hymn like of course it belongs there, it’s part of what it means to be American.
Hey, hierarchies with God at the top are nice sometimes. They make the cosmos seem orderly, they give life meaning and purpose. They clean up the mess, make it so we don’t have to deal with being so damn… human… all the time.
I mean, screaming into the void does get old.
And just think what it would be like to actually have to think through a way to make sense of the messiness of human government in a way that would hold accountable people like former (praise be to the Autocratic God at the top of the pyramid!) President Trump – not to mention what that would mean for Republicans and the Christian Right and everyone else who might in the absence of King James Law be considered morally, ethically, and legally accountable for half a million deaths.
Yeah, that would be tough, all of that out-of-the-Bible-box creative thinking it would take to come up with something like that.
Just like it would be tough to figure out whether a reasonable person might take a deadly plague seriously.
[1] Coronavirus Update (Live): 98,049,817 Cases and 2,098,153 Deaths from COVID-19 Virus Pandemic – Worldometer (worldometers.info). Some people think the U.S. performance isn’t so bad if you measure it per capita: Mortality Analyses – Johns Hopkins Coronavirus Resource Center (jhu.edu). Great. Explain that to somebody’s friends and family.
[2] CO 18-3-305. Criminally negligent homicide – Law of Self Defense
[3] Wikipedia on Sovereign Immunity. See also Wikipedia on Sovereign Immunity in the United States.
[4] McCann, Miles, “State Sovereign Immunity,” National Association of Attorneys General, NAGTRI Journal Volume 2, Number 4. Although the article is technically about state – vs. federal — sovereign immunity, the quoted text applies to both. See also the following quote from this monograph from the law firm of Debevoise & Plimpton, a New York based firm with a reputation for its commitment to diversity” “At its core, the doctrine of sovereign immunity stands for the proposition that the government cannot be sued without its consent – that is, ‘the King can do no wrong.’ Sovereign immunity is simple in concept but nuanced in application.”.
[5] Pugh, George W., “Historical Approach to the Doctrine of Sovereign Immunity.” Louisiana Law Review Volume 13, Number 3 (March 1953).. Citations omitted.
[9] McCann, Miles, “State Sovereign Immunity” and Wikipedia on Sovereign Immunity in the United States
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