Today’s hijinks put me in mind of something I learned in law school, oddly enough.
Way back then, oh so many years ago, I recall studying a hybrid concept in our law referred to as “criminal negligence” – “hybrid” because negligence is a civil law concept that has to do with how a person ought to have behaved, based on what she ought to have known (an “objective” standard), whereas criminal law is generally based on what the accused actually knew and consciously intended to do (a “subjective” standard). The Canadian Supreme Court, if memory serves, decided that despite the use of the word “negligence” in the Criminal Code, objectivity had no proper place in the criminal law, yet they had to square that conclusion with a statutory crime that was clearly designed to handle situations in which the offender didn’t really intend for what happened to occur – how else to make sense of the legislature’s use of the word “negligence”? So, they decided, criminal negligence might not require an intended outcome, but there had to be a subjective element; the offender must have known that his behaviour might produce that outcome, but decided to go ahead anyway, not really giving a damn what could happen. In legalese, this state of mind was referred to as “a subjective advertence to the risk”. If memory serves.
My thorough understanding of US criminal law, based on having watched every single season of Law and Order (more than once if those seasons included Jill Hennesey’s portrayal of the awesome Claire Kinkaid) is that the Americans, or at least the prosecutors in New York State, can charge a similar criminal offence: “depraved indifference”. If I understood Sam Waterston correctly, it’s the same sort of thing, applicable to cases in which the offender didn’t set out to produce the bad outcome, but knew it could happen and went ahead anyway, not really giving a damn.
It seems to me, then, that Donald Trump is seriously considering a move that would cross the line into criminal negligence on my side of the border, and depraved indifference on his side. He’s talking about putting a stop to the measures that are meant to slow the progress of COVID-19, which are throttling the economy, and seems intent upon sending everybody back to work and back out to the bars, theatres, and restaurants once 15 days of social distancing have passed. This was his typically nuanced tweet last night:
Today, he continued to harp on what he calls “reopening the country”, which he figures should begin once the elapse of barely more than two weeks of social distancing has, presumably, set things to rights. At his regular afternoon press briefing <involuntary gag response> he was adamant:
That policy will get people killed. Maybe hundreds of thousands of people, we just don’t know. Donald understands this. He knows this perfectly well.
The thing is, though, that all this social distancing, all this sequestration of folks in their homes where they can’t go to Disneyland, or take Carnival Cruises, or go to movies, eat out, or even, perhaps most horribly, pack themselves into beautiful Trump hotels and resorts, is just killing everybody’s profits. Trump’s especially. It’s tanking the stock market too. The stock market. Killing it. That’s tantamount to murdering God. It is not to be borne. It’s time to rev up the idling economic engine.
But that’d be cruel you say? Callous? Why – because old folks will die en masse if everybody tries to go back to normal after only 15 days? Yeah – so? Cost of doing business. Acceptable losses. Why, as even dear, grizzled old granddad and grandma would agree, bless their dry, wrinkly hides, it’s better they both drop dead than live in an emasculated America with a moribund stock market. They’d buy that. They had a good run. Hey, just ask Lt. Gov. Dan Patrick of the great State of Texas, here assuming the role of spokesperson for his generation:
I’d retort that maybe we should take a poll and actually find out how all the rest of those granddads and grandmas feel about it, but you know what polls are like:
Poll question posed by a liberal organization: Would you be content to give up the ghost right now and have your corpse dumped in an unmarked mass grave, so long as it goosed the Dow?
Posed by a conservative: Would you be willing to make certain sacrifices in order to secure the American Way and the future well-being of your grandchildren?
Do it right and you can get a poll to come out any way you like.
Anyway, nobody in Trump’s orbit gives a raggedy rat’s ass about what happens to anybody’s grandparents, or anybody else among the myriad who’ll surely get sick and die (the idea that the virus is only lethal to old folks is an insanely dangerous misconception). They don’t care about the economic plight of ordinary citizens, either, though they’ll frame it that way. They care about the shrinking portfolios of their extremely wealthy donors, who’re undoubtedly screaming like stuck pigs to anybody in the GOP who’ll listen (which is to say, everybody in the GOP). They care about their own wealth. They care about getting Donald re-elected, to which end a tanking stock market and severely depressed economy provide intolerable obstacles. They serve only Trump and Mammon. Trump serves only himself.
Hold on though – Trump has no legal authority to end social distancing, does he? No, no legal authority, and I’d take comfort in the idea that it’s really the State Governors, leaders like New York’s Cuomo, who’ll decide whether everybody should come back out to resume business as usual, but it’s not that simple. Trump has a huge constituency, and if he throws his weight behind resetting everything back to normal, millions will applaud him, and the Governors of Red States, many of whom are already skeptics about the pandemic and what it will take to bring it under control, will feel intense pressure to go along. Present efforts to slow the spread of the disease, already inadequate, surely won’t work if they’re packing the beaches in Florida even while New York remains in lock-down – and they will pack those beaches. They will go to Six Flags. Hell, there are millions of MAGA Monsters out there who still think this is all a hoax designed to make Dear Leader look bad. Trump would set all those yahoos loose, with catastrophic consequences.
The most awful aspect of Donald’s knee-jerk avarice is that it’ll end up being entirely counterproductive, even as judged within the twisted Trumpian value system. Sure, they’ll all crowd into Vegas and queue up for the rides at Disneyland in the short run. They’ll spend all their money, sating their pent-up consumer demand, sneezing and slobbering all over each other as they go. Then, sadly, will come the medium-long run, when they all start to cough, wheeze, grow feverish, and die. Thus will the party end. Once millions upon millions become ill, the economy will go from limping along on one engine to plummeting earthward in an irrecoverable flat spin. Think about it: when anybody you might bump into out there is liable to be a plague monkey with whom even casual contact spells hideous death, who’s going to be keen to go to the office? Who’s going to be all fired up to take in a play, then dine out in a crowded eatery? Would you get on a plane? The subway? How about a visit to the hairdresser? Perhaps you’ll fancy an extended ocean frolic on the fabulous Princess Pandemic? OK, McDonald’s then? Taco Bell? C’mon, I hear the kids behind the counter wash their hands as often as twice per shift. Anybody?
“Reopening America” at this stage won’t just lead to mass casualties. It’ll burn the economy to the ground. It really will be depraved, and it damned well ought to be criminal.
Subjective advertence to the risk. It’s classic Donald, the teflon man who loves to roll the dice, the human wrecking ball who leaves destruction in his wake wherever he goes and whatever he does, and never gets a mark on him. We saw it all coming from way back, right? We made light of it. Smart-asses like me used to joke that if somehow the monster got himself elected (impossible!), Trump was going to get us all killed.
I don’t think many of us actually believed it, deep down. For just this once, it really sucks being right.
Here, in case you think I exaggerate: