'A product of gross negligence': Why this ex-federal prosecutor thinks Trump must be prosecuted

Donald Trump has inflicted mass death on the American people through his malevolent, indifferent and willfully cruel response to the coronavirus pandemic. In the United States more than 5 million people have been diagnosed and 166,000 people have now died — and the true numbers are likely much higher. Public health experts predict that the final death toll may be as high as 250,000 to 300,000.

Yale University public health expert Dr. Gregg Gonsalves summarized this dire situation in a recent conversation with Salon:

Trump's pandemic response is not the same as Nazi Germany. It is not Rwanda. But Trump's response is something that is well beyond a policy mistake. One hundred thousand people are dead. There are likely to be 150,000 or perhaps even 200,000 dead from the coronavirus pandemic in the United States. The estimates are that two-thirds or more of the deaths could have been prevented. ...

Moreover, it was premeditated. There were people in the White House and elsewhere warning Donald Trump, "People are going to die. We need to do something about this." And the White House made a concerted policy decision to let people die…. What the Trump administration is doing in response to the coronavirus is something we have not seen in the United States in a long time, which is basically wiping out a whole group of people by public policy.

In a new essay at the Atlantic, Ed Yong shows in rich and compelling detail how American government and society failed in its response to the pandemic, observing that Trump is himself a type of "comorbidity" for the pandemic disaster.

During congressional hearings in July, Illinois Gov. J.B. Pritzker summarized the Trump regime's abandonment of responsibility for the common good and general welfare as resembling a real-life version of the "Hunger Games" books and movies.

It has now been reported that Donald Trump did not care about the coronavirus pandemic until it started to sicken and kill "our people," meaning likely Republican voters in red states. This is more proof, if we needed it, that Trump feels no responsibility to the majority of Americans who do not support him and his regime.

In a recent interview with Chris Wallace on Fox News, Trump responded to a question about deaths from the pandemic by saying, "It is what it is."

Vanity Fair reports that Trump's son-in-law Jared Kushner (who was tasked with leading a so-called coronavirus task force) advised the president to abandon a plan for national testing because the pandemic, at the time, was primarily impacting Democratic cities and states. Kushner and the Trump regime made the grotesque decision that sick and dying people in New York, Boston, Chicago and California would somehow help Donald Trump's re-election chances.

Many of the Americans who have died (and will die) from the coronavirus pandemic would likely still be alive if Trump and his regime had treated the coronavirus as a serious public health emergency months ago instead of at first ignoring it, then sabotaging the response for personal and political reasons, and now continuing to risk human lives (including children and elderly people) in a quest to aid Trump's chances of victory by forcibly "reopening" the economy.

Trump's presidency is a moral crime and an abomination. It is a crime against human decency. Trumpism and its supporters are attacking and seeking to undermine American democracy, civil society and the rule of law. Trump and his followers have their boots on the necks of America's multiracial democracy.

After Trump was impeached for his attempted extortion against the government of Ukraine as part of a scheme to defame Joe Biden (as a way of weakening Biden before the 2020 Election), Republicans in the Senate refused to convict their president. Despite the abundance of evidence against Trump, they effectively anointed him as a de facto emperor, a person above the law.

A huge question looms over the Age of Trump and its aftermath: Should Donald Trump and his inner circle face criminal charges for their fatal response to the coronavirus pandemic? Former federal prosecutor Glenn Kirschner believes the answer is an unqualified yes.

Kirschner is an NBC News and MSNBC legal analyst who teaches criminal law at George Washington University. During his 30-year career in law enforcement, Kirschner also served in the U.S. attorney's office for the District of Columbia, where in the mid-1990s he worked under Robert Mueller.

In this conversation, Kirschner explained why Donald Trump and other members of his regime should be criminally prosecuted for negligent homicide or manslaughter because of their actions in response to the coronavirus pandemic. Kirschner also outlined his belief that the United States will need its own version of the Nuremberg trials to fully expose and punish the expansive wrongdoing of the Trump regime.

Kirschner also reflected on his onetime boss Robert Mueller, and the outcome of Mueller's "Russia investigation." Most troubling of all, he issued an ominous warning that Donald Trump will pardon Attorney General Bill Barr and other high-ranking members of the administration for any crimes if they continue to aid and abet his assault on American democracy and the rule of law — which may include attempts to enable Trump to stay in office by any means necessary.

You can also listen to my conversation with Glenn Kirschner on my podcast "The Truth Report" or through the player embedded below.

As usual, this interview has been edited for length and clarity.

How are you feeling? How do you make sense of Donald Trump and his administration's assault on democracy, the rule of law and human decency?

I was a federal prosecutor for 30 years and a homicide prosecutor for 22 of those 30. So I worked with death and grieving families every single day in Washington as a homicide prosecutor. I have thick skin. I was in the Army before that. I believe that I do fine with difficult circumstances on the day-to-day. But what really upsets me is that the American public, by and large — at least the ones who are paying attention — are suffering from PTSD. This entire situation with Donald Trump and his administration has made the American people so upset and anxiety-ridden.

It is clear that If Donald Trump were not a rich white man and president of the United States he would likely already be in prison. You were a federal prosecutor. You understand the criminal mind. What do you see when you look at Donald Trump?

Donald Trump is a career criminal, plain and simple. I have asked myself repeatedly, "Why is it that Donald Trump has not been held accountable by prosecutors?" Be they state prosecutors in New York or federal prosecutors in New York or elsewhere.

You worked with former special counsel Robert Mueller for several years. What do you think happened with the Russia investigation? It seemed like Mueller should and could have gone much further in his investigation of Trump's obvious collusion with Russia. Mueller was very restrained and careful in his testimony. There were moments when it seemed as though he was holding information back that would have been even more damning for Trump and his inner circle and allies.

There are several things happening here. Mueller is an institutionalist. In fact, he's an "institutionalist's institutionalist." I believe that one of the hardest things for him to do was to come out and criticize Attorney General Barr for misrepresenting his findings and conclusions. That was difficult to do because as federal attorneys and law enforcement we push back in private. Not in public, but man to man. I literally had an office right next to Mueller and I was his point person on the FBI/Metropolitan Police Department cold-case task force. I have a sense of the man and the prosecutor and certainly the supervisor he was, which was second to none. Ultimately, we do not like to criticize our boss in this business and we really do not like to do it in public.

However, Mueller was also a Marine. As a military man or woman, you are taught that you must speak out if your superior has done something that is unlawful. Mueller did that with Bill Barr. He said, "Look, Attorney General: You mischaracterized my findings and conclusions, and as a result, the public is confused." Judge Reggie Walton has gone even farther, saying that Bill Barr is a liar who spun the Mueller report by mischaracterizing the findings and conclusions.

I believe that Robert Mueller felt great pressure to move quickly through the investigation to a timely conclusion. Twenty-two months sounds like a long time, but it was light speed for what he accomplished. He did not chase down the money trails with Trump and his campaign because he probably made a calculation: "Look, my mandate, my jurisdiction, my scope, is to investigate the relationship and context of the Trump campaign and the Russians, and to prosecute any case I needed to in order to further that investigation."

Mueller said he was not denied permission to do anything that he wanted to do in terms of the investigation. I believe him. I do think the Russia investigation seemed to be too narrow, because there was so much more that Mueller could have done. But he could have taken another 22 months, and his investigation would have outlived the Trump presidency. In my opinion, Robert Mueller balanced all of the competing concerns and interests and did what he thought was right.

As an institutionalist, I absolutely believe that Robert Mueller thought: "When I deliver this report which says, 'sweeping and systematic interference,' that details 140 contacts between Trump campaign members and the Russians, that the Trump campaign welcomed the assistance from Russians ..."

When I look at that, and I am a pretty forward-leaning prosecutor, give me another year and I would have found clear and overwhelming evidence that would have supported a conspiracy charge against Trump and the people in his orbit.

Perhaps more importantly with respect to Trump himself, in Volume Two of the Mueller Report there are as many as 10 documented felonies, federal obstruction of justice crimes, committed by the president of the United States. Mueller and his team showed overwhelming evidence of obstruction of justice.

Because Robert Mueller is an institutionalist, he thought he would deliver this evidence to Congress and that it would serve its purpose. The report was an impeachment referral to Congress. Robert Mueller, being the honorable man that he is, probably believed that Trump would then be impeached and convicted and removed by the Senate. Robert Mueller is a lifelong Republican. He really believed that the Republicans, his party, would recognize just how dramatic his findings are about Trump and Russia.

The second thing Mueller believed is that Donald Trump would be prosecuted — albeit when he leaves office, because of that horrible Office of Legal Counsel memo which says that a criminal president cannot be indicted while in office.

You are a law professor. What is the teachable moment from the Trump-Russia scandal and Mueller's investigation?

You can document the crimes that have been committed by politicians, but if the rest of the system is unwilling or unable to do its part, which here is the Department of Justice, the judiciary and the legislative branch, then the system fails.

When the justice system fails, the American system of government fails. The teachable moment for me was that I always believed that there was a certain baseline of patriotism below which politicians would not sink, whether they were Republicans or Democrats. And what I have learned, and what we've all learned the hard way, is there is no bottom. There's no baseline of patriotism below which, at this moment in time, the Republicans in the Senate would not sink.

The Republicans just want to remain in power, and they will do anything to remain in power, including continuing to support a president in the form of Donald Trump who could destroy the republic. No matter how dangerous Donald Trump is, the Republicans continue to support him. I don't know how to fix that.

When Attorney General Barr recently testified before Congress, what did you see?

I saw a man who is corrupt to his core, brazenly and defiantly so. Barr has assumed the position of the president's Roy Cohn, a man who is a partisan loyalist, a fixer, a person with no respect for the law. Barr has taken on that role happily.

There were so many things in his testimony before the House and Senate that merit condemnation and some that should be prosecuted. Barr is so brazen with his ethical and criminal conduct that I believe his pardon from Donald Trump is already printed, signed and sitting in Donald Trump's desk. It has to be the case, because Barr does not appear to care if he incriminates himself.

For example, Barr wouldn't even immediately and flat-out say that a president taking foreign assistance to win an election would be a crime. William Barr is bold. He's so brazen. He is a bully. And Barr knows that he is getting his pardon from Trump, which means that he can say and do whatever he wants.

However, the one thing that William Barr may not want to believe is that every pardon that Donald Trump gives — and certainly Roger Stone was a quintessentially corrupt pardon — will need to be litigated beginning in January. And I believe that these corrupt pardons will be successfully attacked in the courts because the judiciary will rule that corruptly issued pardons, particularly by co-conspirators, are unlawful.

One of the reasons the courts will rule these pardons are unlawful is because if a criminal president can pardon all his criminal associates, then the courts will have put all those people above the law and above the reach of the courts. It is self-preservation, if nothing else, that the courts will say, "No, you can't do this." The courts will retain jurisdiction and the ability to try cases involving these political criminals.

The other possibility, and the most basic and obvious one, is that Barr, Trump's other agents, and Donald Trump himself, break the law in plain sight because they believe they are going to be in power as long as they want. Trump and his regime are publicly trying to steal the 2020 election to stay in power indefinitely. If there are no consequences, then there are few if any reasons for Donald Trump and his agents not to break the law.

The combination of a pardon and re-election — are they going to successfully steal the next election? Or when he loses in a landslide, declare it is a product of Chinese interference, which is what they have been trying to set up with their crazy demonization of all things China?

The more Americans get sick and die from the pandemic, the more Trump is going to say, "It's China's fault." I believe that is part of the explanation for why Trump is allowing the pandemic to spread across the country largely unchecked. He will blame his loss to Biden on China. Then Trump will order Barr to begin a national security investigation. We know that Trump and is supporters are going to try to steal the 2020 election and the presidency. If they are successful, then the American republic is done for. Barr and Trump together for another four years or more? The republic is truly doomed.

Do you believe that Donald Trump is running a political crime family? If so, how would you prosecute them?

I would probably use the RICO statutes and go after the Trump Organization and the family's role in it as a racketeer influenced organization. It has a hierarchy and established roles for the different people in the organization. It will take a massive law enforcement effort to prosecute the Trumps. I would focus on fraud and corruption.

You have been very public and bold in your assertions that Donald Trump should be criminally prosecuted and then convicted for his handling of the coronavirus pandemic. What would the indictment look like?

Some jurisdictions call this involuntary manslaughter or negligent homicide. The lowest level of homicide has three elements to the crime, and Donald Trump satisfies them easily.

The first element is that a person commits an act in a grossly negligent manner. Or there is a duty to perform an act and a person fails to perform it in a grossly negligent matter.

There are many different pieces of evidence which show that Donald Trump has acted in a grossly negligent manner in the way he has handled or mishandled the coronavirus pandemic. Trump had a duty to act as president of the United States and he failed to act — and that failure was a product of gross negligence.

The second element of that type of homicide is that your grossly negligent act, or your grossly negligent failure to act, was reasonably calculated to result in serious bodily injury or death. With a deadly virus, the grossly negligent failure to act is reasonably likely to create serious bodily injury or death in another person.

The third element, which sounds like it is the toughest to overcome, is causation. The causation element says that a person acted in a grossly negligent manner where their failure to perform a duty or conduct or failure to act was reasonably likely to create death or serious bodily injury in another person.

The United States will need a truth committee if the country is to begin healing from the damage done by Trump, the Republican Party and their movement's assaults on democracy, human and civil rights, and the rule of law. If you were asked to testify or advise at such hearings, what would you want to know about the Trump regime?

I have been advocating for a Nuremberg Trial-like approach to criminal prosecutions. A truth and reconciliation commission would complement the criminal investigations. If we are to heal and rebuild the United States after Trump, then the criminals must be held accountable.

The public must know why Donald Trump is beholden to Vladimir Putin and has made national security decisions based on what is in Putin's best interests and not those of the United States and the American people. The pandemic and Trump and his administration's response must also be investigated and revealed in all its elements. When one apparent criminal string is pulled, the whole ugly patchwork of conspiratorial conduct by Trump and his inner circle and others will be revealed. It is going to get ugly.

The widest possible investigative net should be cast to catch Trump and other apparent political criminals. In the final analysis, some hard decisions are going to have to be made about who to indict — beginning in January, after the presidential election, if Trump is no longer in office.