I am interested in a legal question regarding liability, and would welcome the input of any attorneys or legal scholars who chance to read this – a legal opinion.
Dr Fauci, whom I believe would be be viewed by any reasonable person as having an expert opinion, said Sunday, publicly on CNN, that that in the six administrations he has served there has been a necessary and orderly transition of knowledge, especially in dealing with a national emergency. He also said that there was no question that our national response to Covid would be improved by such an orderly and timely transition. This implies that not doing so damages our response, at least it implies so to me, as I believe it would to any reasonable person (that is, I believe, a legal concept).
I recognize that there is no such thing as “criminal liability” for a sitting president, but I wonder if a president can be held civilly and financially liable for harm done, to life and limb, in acting outside of his duties as president? Acting, for example, in a strictly political capacity. Acting in such a manner that a “reasonable person” would find responsibility for harm. The question of what a “reasonable person” would conclude, or do is not a trivial question, but it is not insoluble and as matter of fact, juries have to decide it on a daily basis.
First, what would a ‘reasonable person’ conclude about the election results? Well, the Associated Press, which has called elections every time since 1848, has been joined by all major networks, including the three large broadcast networks, CNN and even Fox News, in calling this election by a wide margin, 306-232 electoral votes. While it may be true that there are left to be a few legal challenges out there, election officials all over the country have maintained the elections were free and fair, and the president’s own National Security service as certified this as the most secure election ever. The states which Biden won back have been previously so commonly democratic that they were, until 2016, called a ‘Blue Wall’. So would it not be a reasonable guess that they might revert to their traditional pattern? Also, there has never been a time this year in which Mr Biden was not substantially ahead, not only in national polls but in battleground states. Therefore, my question is, would it be fair to assume that a ‘reasonable person’ would conclude that it is at least more likely than not that Joe Biden will be ascertained to be the President – Elect?
After all, given that Biden is ahead 306 – 232, he could lose legal battles in the two largest states of the most recent four, PA and GA, and still be at 270. He would have to lose three of the four states, PA,GA,AZ and NV, to fall behind, by large enough margins to reverse substantial leads, and since there are no law suits which have won and most dismissed, wouldn’t a ‘reasonable person”, legal term, be likely to conclude that there is at least a substantial likelihood is that Biden is the next president.
Now we know that there exists a time honored tradition that the person elected president has access to information needed to make a smooth and safe transition. This is considered necessary to the safety and security of the nation, and it is traditional enough at this point to be considered, I believe, by a reasonable person, to be the standard expectation. So, I would ask, if a reasonable person would conclude Biden is at least as likely as not to be the next president, and knowing that the tradition, at least over this last half century is for there to be an orderly transition, wouldn’t a reasonable person be likely to conclude that in refusing to conduct such a transition, Trump is acting outside of a nationally recognized standard?
Now to continue, we have a nationally recognized health expert who argues publicly that failure to adhere to this traditional standard compromises our ability to contain this pandemic, which will naturally lead to more deaths. So – my question is, can Donald Trump be held civilly liable, – not criminally, but financially, for excess deaths which occur over the next several months over that number which could have been predicted, based on current best – or at least better case scenarios?
After all, he is not functioning in an official government capacity to refuse transition to the almost universally acknowledged President – Elect,at least I think few “reasonable persons” would find so. He is functioning as a political candidate disappointed with the results of an election.
So, if such a claim could be made, one question which would arise would become how to calculate the number of ‘extra’ deaths.
We have models of likely mortality. The one quoted in the same CNN interview suggests 439,000 by March 1. Dr. Fauci has said that optimum care could “blunt that” number. How could we quantify a number that it could be blunted by? Say, just to take a number from thin air, that we could lower that curve by 100,000 if we had the best possible response. And now say we don’t do so, because our best response was hampered by the delay in transition of knowledge to the incoming party responsible. Wouldn’t it be likely that a reasonable person could conclude that this failure to blunt, and the consequent loss of one hundred thousand extra lives was at least partially because of the delay in transfer of knowledge? In failing to proceed in a timely fashion with the long standard of transition of power, couldn’t Trump then be argued to be at least partially responsible for those extra deaths?
How responsible would he be? What proportion? That is always difficult to ascertain in any tort action I believe, and is often an area of contention in malpractice suits. Let’s just say, for the sake of argument, that failure to transfer knowledge and access to planning in a timely and responsible manner translates to a small percentage of the blame for excess mortality. Say 10% to be very conservative.
So, if we could have, as Dr Fauci phrased it, “blunted the curve” by 100,000 deaths, but don’t, and if 10% of that, or 10, 000 extra deaths were judged to be the result of Trumps improperly delayed transition practice, one could ask, How much would the legal liability be for those unnecessary deaths?
Well certainly in the realm of medical malpractice an unnecessary death can be quite costly. How about a simple, faultless, insurance type death settlement. Is there information on that? That is hard to find, since we have a litigious society and a wrongful death action may get millions, but in Canada, for example, where torts are less a matter of jury settlements, I saw quotes from $49 to $80 thousand being standard. Taking the lower figure and adjusting for the exchange rate it seems about 40, 000 if a more or less usual settlement, so to be conservative let’s take 30,000 USD.
My question then, if there are attorneys interested I weighing in, is this. Could it be argued that if Donald Trump does not move promptly to begin an orderly transition of knowledge, preparation and responsibility, at least in this one area, and it is subsequently estimated that this failure is accountable for say, 10,000 extra deaths (about a week and a half worth), could he be held liable for at least $300,000,000 in wrongful death settlements?
Now, to look for some protection for the president, and how he could lay off some of that accountability. For his own protection, if he were to be sued, could he then turn around and lay some of that accountability off on the legal counsel leading him to make this delay? Would, for example, Rudy Giuliani bear some of the financial responsibility? I doubt that those in the news media who counsel him to delay could be “in-pleaded” into any fine or settlement, since they have no duty to protect the president? His legal counsel though? I wonder.
Of course the fact that Dr Fauci only yesterday gave a public statement about the likelihood of improving the pandemic’s mortality with a prompt transition, and today is the first business day after, I should imagine that if Donald Trump began such a transition today, or even tomorrow he would be shielded from any possible legal action over the last week’s delay. I should think it prudent of the President’s counsel to advise him to do so.
Would any attorneys be interested in weighing in on this question?