The short answer is: the President.
Last evening, the President of the United States, with his COVID-19 still in full bloom, drove by and waved to his supporters outside Walter Reed National Military Medical Center in a black SUV with the windows rolled up. Inside the vehicle, his Secret Service agents wore masks and protective gear while the President wore a business suit and a reusable mask.
Remarkably, just before the motorcade tour, the infectious president stated, “I get it,” claiming to now understand the severity of the global COVID-19 pandemic that has killed 210,000 Americans. In a very short video, officially released by the White House, the president insisted that he now fully understood and appreciated the gravity of Coronavirus. However, his almost immediately subsequent actions, in leaving the hospital and sitting inside the SUV with others, suggested otherwise. As an aside, it is unknown at the time of writing, it is unclear whether the president’s motorcade tour was done with the permission of his doctors.
As social media became rapidly obsessed with the president’s motorcade tour, National security lawyer Bradley Moss tweeted:
If you were on the Secret Service detail, and you are concerned about the risk you were just unnecessarily exposed to so the COVID-infected president could wave to supporters, please reach out to me for legal guidance.
— Bradley P. Moss (@BradMossEsq) October 4, 2020
When a president not only diagnosed with an active case of COVID-19, but taking a wide range of several experimental drugs and registered as an in-patient at Walter Reed National Military Medical Center decides to arrange a motorcade tour, it raises the issue of civil liability for potentially tortious actions.
As bad as the president’s ride looked, it was infinitely worse in reality. This from the (you can’t make this stuff up) Chief of Disaster Medicine at George Washington University, who is also an attending physician at the same Walter Reed where the President is a patient:
That Presidential SUV is not only bulletproof, but hermetically sealed against chemical attack. The risk of COVID19 transmission inside is as high as it gets outside of medical procedures. The irresponsibility is astounding. My thoughts are with the Secret Service forced to play.
— Dr. James P. Phillips, MD (@DrPhillipsMD) October 4, 2020
The law is actually far more set in this area than we would believe it to be.
Four sitting presidents have been subject to suits for private actions. Suits against Presidents Theodore Roosevelt and Harry Truman were dismissed, while one involving President John F. Kennedy was settled.
The fourth, the infamous Paula Jones lawsuit against President Bill Clinton, formed the basis of the 1997 Supreme Court of the United States case, Clinton v. Jones.
In Clinton v. Jones, the Supreme Court distinguished between “official” and “unofficial” conduct and ruled that a sitting president may be sued for the latter, but not the former.
The Court disagreed with President Clinton. In the majority opinion written by Justice Stevens, the Justices recognized that while a president must be shielded from liability for actions taken in office, so he can “perform designated functions effectively without fear,” that protection and immunity from civil suits in federal court does not extend to matters unrelated to the presidency.
So the threshold question is whether President Trump’s SUV tour around the hospital in which he is a patient is a matter related or unrelated to the presidency.
While this threshold question is where things get tough, let’s tackle the easy part first. It would take a fairly dramatic legal and logical leap of faith not to believe that President Trump’s actions were tortious.
As many law students will surely review today, a tortious act is a civil wrong that causes harm to others. The law imposes liability on the person who commits the wrong, usually in the form of a private civil remedy that seeks monetary damages. Negligent acts can be a tort as can intentional acts that are reasonably foreseeable to cause harm to an individual,
President Trump’s acts, in leaving the hospital to wave to supporters from a motorcade, is an act suggesting that the President will continue disregard the simplest of precautions necessary to contain the virus. It was a tortious act, which plaintiffs in a civil case could argue was negligent, reckless, or intentional. Just the visual historical record that is now available on the motorcade tour establishes a prima facie case of a tortious act.
Now for the difficult part. President Trump would (or should) argue that the motorcade tour was an official act. That the plan and execution of the brief tour was something that he decided, in his role as President of the United States, was absolutely necessary to restore the confidence of the American people. The motorcade tour was done with no other viable, safer option, because the American people and the world needed to see the image of the American President, vital and coherent, recovering through strength of will and ready to lead.
Regardless of one’s preferred level of jingoism in the description of the president’s acts, the key is duty and obligation. That everything President Trump did to set up the SUV tour and carry it through was a presidential act, in and within the scope of office.
It is admittedly an argument that can be well-played in court. There is no doubt that the nation today is in a time of great crisis and that seeing their president in the throes of recovery after being felled by COVID-19 is a boon to the confidence of the American electorate. There is no end to the floral language that can be chosen in pleadings and hearings to describe the selfless nature of a president who rises from a hospital bed to see his citizens.
Conversely, there is an equally eloquent legal argument to me made that President Trump’s decision to take the motorcade tour was not only a clearly tortious act, but that it was a matter wholly unrelated to the presidency, an out the back door of the hospital SUV spin fueled by megalomania and ego.
As a final point, there could be a legal argument that the “kitchen sink” drug cocktail of Regeneron’s monoclonal antibody therapy, plus Remdesivir, plus Dexamethasone, plus whatever else the public has not yet been made aware of, has placed the President in a mental state where he is incapable of making the rational decisions the reasonable person standard anticipates under the law.
Courts have generally held the mentality infirm defendant to the same standard in a tort action as an average defendant. The fact that a defendant was even temporarily mentally impaired at the time of his tortious conduct is often ignored by tort law’s liability rules.
If actual tort claims are filed by people injured by the President in his motorcade tour, what is certain is lengthy litigation which will seek to test the elasticity of the definition of official and unofficial conduct of the President of the United States of America.