UPDATE: Saturday, Dec 31, 2022 · 6:52:02 PM +00:00
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Dem
Some people are pointing out that since it was intentional, it seems like it should be voluntary manslaughter or others are advocating for depraved indifference or genocide. I can definitely understand why those terms make sense for a lay person, but Mr. Kirschner, based upon his knowledge and experience, believes that this is the highest charge that he can get a conviction on, that he has proof beyond a reasonable doubt for, and that he can establish all the elements for. I am not equipped to challenge his judgment in this matter.
I have wondered for some time now whether or not Trump’s intentional mismanagement of COVID was criminal. Yesterday, I wrote a comment in which I suggested that it was because his mismanagement was intentional, and to add to my comment, it was reasonably foreseeable that a death would occur as a result of his decisions. Here’s part of my comment (it was a long one):
In any event, I absolutely can't begin to understand or to plumb the depths of the stupidity of the idiots that didn't vote for him in 2016 but we're convinced by what happened during those four years that he did such a bang up job that NOW !!! he had earned their vote whereas before he just wasn't quite enough of a lying murdering buffoon to deserve it earlier. He lied about COVID. A Lot of people here used to use lie wrongly, incorrectly, applying it to simply stating something untrue regardless of whether or not the speaker knew that what they were saying was untrue. He absolutely lied about COVID as Woodward demonstrated, conclusively proved. And that cost people their lives which he had to know would be the outcome of his lies about COVID, telling people it was no big deal and to not do anything to slow it's spread and protect people from it. Maybe that's technically not murder but intent is present and he did things that he knew would result in the deaths of people who were no real threat to him. So, even if it's not technically considered murder in a court of law, it has elements that line up with it, doing something that you knew would result in the deaths of people unnecessarily ( and yes I recognize the seeming hypocrisy but the fuller explanation avoids that).
Brian Tyler Cohen talked with Glenn Kirschner about part of the transcript of the January 6th committee. Glenn Kirschner’s bio / resume/ cv is very impressive in my personal opinion:
Glenn L. Kirschner (born January 2, 1961[1]) is an American attorney, a former U.S. Army prosecutor, and an NBC News/MSNBC legal analyst.
He graduated from New Jersey's Point Pleasant Borough High School in 1979,[4][5] where he wrestled[6] and played football,[7] and earned a U.S. Army Student Achievement Award.[5] He attended Washington and Lee University, where he studied journalism.[4] While at Washington and Lee, he was awarded an Army ROTC scholarship and joined the Virginia Beta chapter of the Phi Kappa Psi fraternity.[4][8] He played for the Washington and Lee Generals football team as a center on the offensive line for four seasons and was elected by his teammates as one of three team captains for his senior year.[9] Kirschner earned Old Dominion Athletic Conference all-conference honors his sophomore, junior and senior years and was named a first-team Kodak All-American college football player his senior year.[9] He was inducted into Washington and Lee University's Athletic Hall of Fame in 2009.[9]
Upon graduating from college in 1984, Kirschner obtained an educational deferment of his military service to attend law school.[10] While attending New England Law Boston he earned two American Jurisprudence awards (in trial practice and wills, estates and trusts) and was designated a Board of Trustees Scholar after his second year.[11] He received his J.D. degree cum laude in 1987 and entered active duty with the U.S. Army Judge Advocate General's Corps in January 1988.[10]
Upon entering active duty as an Army JAG, Kirschner served his first tour at Fort Richardson (Alaska), serving as an Army prosecutor.[10] In that capacity he investigated and prosecuted court-martial cases and served as legal advisor to the post's many commanding officers.[10] After three years in that assignment, Kirschner was transferred to the U.S. Army's Legal Services Agency in Falls Church, Virginia, where he served as a government appellate attorney handling criminal appeals of court-martial convictions.[10] In that assignment, Kirschner handled espionage and death penalty cases among others.[10]
After more than six years of active duty service, Kirschner was honorably discharged from the Army at the rank of captain.[10] In June 1994, he joined the United States Attorney for the District of Columbia office as an assistant U.S. Attorney.[12]
After a few early rotational assignments, Kirschner joined the US Attorney Office (USAO) Homicide Section led at the time by Robert Mueller.[10] Kirschner spent 24 years at the DC USAO, prosecuting lengthy RICO trials in DC Federal Court and murder/conspiracy/obstruction of justice cases in DC Superior Court.[10] Kirschner prosecuted more than 50 murder trials, served as Deputy Chief of the Homicide Section for four years, and was Chief of the Homicide Section from 2004 to 2010.[10] He retired from the US Attorney's office on June 1, 2018.[10]
Kirschner received the Harold J. Sullivan Award for Fairness, Ethics and Trial Excellence in 2017 and the John F. Evans Award for Trial Excellence in 2001, both from the Assistant U.S. Attorney's Association; the John F. Evans Award for Trial Excellence, the Chief of Police Medal of Honor in 2009 and 2010 from the Washington DC Metropolitan Police Department, and was inducted as a fellow into the American College of Trial Lawyers in 2018
When he speaks, I listen. Here is the video of his conversation with Brian Tyler Cohen:
.
. Here is the part of the transcript that began the conversation. By the way, they began by discussing Jared Kushner’s sudden legal exposure which is given an appropriate title.
It was the first COVID , like, morning meeting that Jared led after that had been announced. And Dr. Birx raised, she said, ‘Well should we be looping the Biden transition into these conversations?’ And Jared just said, ‘Absolutely not.’ And then we just moved on.’
Alyssa Farah Griffin
Former White House Communication Director
April 15, 2022
Next they discuss how Jared didn’t want to act to control the disease and minimize the harm done to Americans because at first it was hitting blue states much harder than it was hitting red states.
Brian asks if Jared Kushner has any legal exposure here.
We are starting the transcript here and my comments are in parenthesis.
Mr. Kirschner says”, ‘He does. I am glad that we are getting to revisit the topic of criminal liability for how the Trump administration badly mismanaged, and that’s putting it mildly, because I think much of their misconduct was intentional
, not just negligent, but why they really do bear (note from Dem — I had to look up which spelling was correct — so I included this link in case anybody shares my stupidity) criminal responsibility for avoidable COVID deaths. So, now we have this new revelation in this transcript where Dr. Birx had wanted to include the Biden administration in COVID briefings during the transition period, right. She wanted to make sure that there was a safe, smooth, informed transition and (voice changes) Jared Kushner said, ‘Absolutely not.’ He disrupted that safe, smooth, informed transition. Now, how does this surprise us? No because if you’ll recall the reporting that Jared Kushner was quoted as saying, ‘Look, at the moment, COVID is impacting, it’s affecting (note from Dem — voice change again) blue states more than red states, so let’s just let it run rampant through the states.
Brian, I have maintained all along, I have talked about this a number of times that the way the Trump administration handled the pandemic really does give them criminal liability. Why do I say that? For 22 of my 30 years as a prosecutor I was handling murder cases in Washington DC, I was trying them, I was supervising them, I was responsible for overseeing all murder cases in the courts of DC while I was a federal prosecutor. And you know, if you look at the law of homicide, let’s just take the law of DC as an example, each jurisdiction in each state and the District of Columbia has its own laws on the books and it defines homicides and the different levels of homicides in slightly different ways, and I think we all are kind of familiar with first degree premeditated murder, second degree murder, voluntary manslaughter, involuntary manslaughter, some jurisdictions have what we call negligent homicides. I am going to use the laws of DC for this discussion about the liability of the Trump administration. So, there’s a relatively low level of homicide called involuntary manslaughter. And there are three elements, that is, if somebody does three things, these three elements, then they are criminally responsible for involuntary manslaughter for the death of another.
Let’s talk about these three elements and then let’s talk about why Trump and Kushner and I want to talk for a minute about Mike Pence who was the head of the Coronavirus task force while Trump and Kushner were creating circumstances that allowed for avoidable COVID deaths. So, I think Pence has responsibility too. Let’s talk about those three elements.
The first element is somebody acted in a grossly negligent manner. What does that mean? They did something that was just kind of reckless, it was just really negligent and there are actually two ways that you can fulfill this element. I hate to make this the crim law 101 class but bear with me for a minute. Somebody either acts in a grossly negligent way or they have a duty to act like they’re the president of the United States and they have a duty to faithfully execute the laws of the country, they have a duty to support and defend the Constitution and they have a duty to protect the American people, they have a duty to act and they fail to act and that failure is grossly negligent. I maintain Donald Trump actually satisfies element number one in both ways because he acted in a grossly negligent way and he had a duty to act and he failed to act in a grossly negligent way. Any way that’s a mouthful, but that’s number one.
Element number two is that the person’s negligence put people in harm’s way. More precisely, the person’s gross negligence was reasonably likely to result in death or serious bodily injury to another.
And then the third element is that the person’s negligence or their failure to act caused the death of another. And that’s where a lot of people back up and say, ‘You can’t really prove that Donald Trump caused the death of another, and that sounds good on the surface, but when you scratch below the surface and you look at how the law defines causation, causation simply means that your grossly negligent conduct or your failure to was a substantial factor in bringing about the death of another, not that you killed them, not that you shot them or stabbed them or strangled them, but that your conduct was a substantial factor in bringing about the death.
Now, let’s apply these elements to the known conduct of Donald Trump, and by extension Kushner, and also Mike Pence. First of all, did Donald Trump act in a grossly negligent way, did he put people in harm’s way? Well, let’s see, he lied to the American people about the dangers of the pandemic right? He has now admitted to Bob Woodward in private interviews that ‘I always wanted to downplay (note from Dem — sic- should be play it down) . He didn’t want to tell people the full truth. He didn’t want to give them the people the tools to protect themselves. He said, ‘It’s going to go away like a miracle. The warm weather will kill it. You have nothing to worry about.’ “ And here’s one of the things that he did that I think best exemplifies how it is that he was grossly negligent.
Remember there was a White House press conference and a terrific reporter, Jeff Mason, was asking Donald Trump a question and he was wearing a mask. Why? He wanted to protect himself, the CDC was recommending wearing masks to protect yourself and others, you know, to deter transmission of this deadly virus. And what did the president say to Jeff Mason? ‘I can’t hear you. Take off your mask. ‘ Jeff Mason said, ‘No, Mr. President. I am protecting myself and others.’ He said, ‘Oh, ohm I see I see. You want to be politically correct.’ Think about it Brian, what message did his base take away from that? That you are worthy of being mocked by the president of the United States if you wear a mask to protect yourself and others. And here’s the thing, you know, Americans should be able to rely on what the American president is saying and doing and make their life decisions accordingly. So, you know that he was grossly negligent. Did his gross negligence result in, was it reasonably likely to put people in harm’s way? It absolutely was. He was contradicting the very guidance that we all knew would protect the lives of Americans, would slow or prevent the transmission of this deadly pandemic. The first two elements, check and check.
Let’s go to the third element, did Donald Trump’s negligence cause the death of others? I, we, have a concrete example that I like to use to illustrate why the answer to that question is yes, Donald Trump committed the crime of involuntary manslaughter because he checks all three boxes. So, when I was chief of homicide in DC, we had a case where a robber was chasing a victim down the street, the victim was trying to evade the robber, and he ran between two parked cars, he darted out into the street, he was struck by a vehicle, and he was killed. Now, did the robber kill him? Did the robber cause his death? Well, not literally, the driver of the vehicle caused his death. But this highlights how the law looks at causation. Causation is a substantial factor in bringing about the death and the robber chasing the victim into traffic was a substantial factor in bringing about his death.
I know that I have gone through a whole crim law 101 class on the law of involuntary manslaughter. Thank you for bearing with me. But this is why I absolutely believe prosecutor that Donald Trump is criminally responsible for avoidable COVID deaths. “