January 17, 2023

By Steve Day

Imagine someone you loved died a horrible death unnecessary. Now, imagine there have been many other such deaths. Worse still, many of these deaths have occurred, at least in part, because of lies told to the victims by people they trusted. Finally, imagine that despite all of this death and suffering, the people who spread the lies have in no way been held accountable for their actions. In fact, many are continuing to spread the same kind of misinformation.

For literally millions of Americans — and, yes, it is millions — this isn’t hypothetical. It’s a truth they live with every day. Husbands and wives, children and parents, close friends — people once central to their lives, now are gone forever. Empty chairs at the table on holidays, stories untold, joy unfelt.

And so much of it was unnecessary, so criminally unnecessary.

There have been so many misleading claims regarding Covid: some are outright lies, others pseudoscientific garbage believed and recklessly shared with others. They fly across the internet, leaving a trail of broken lives. Some involve the virus itself. The blue-ribbon winners in this category, of course, are the many claims that the Covid pandemic was a hoax created to hurt Donald Trump. Then there is the never-ending drumroll from those who insist, on the basis of no evidence, Covid is no worse than the flu, children don’t catch it, and, in any case, it will soon disappear.

Then, of course, there are the quack treatments — Ivermectin, hydroxychloroquine, drinking bleach and disinfectants. Who could forget the religiously-based lies, such as televangelist, Kenneth Copeland, claiming he can cure Covid through prayer if the viewer will merely touch the television screen? And there are also the vaccine falsehoods, such as claims that the vaccine rewrites human DNA and is spiked with computer chips to track us or control our minds.

These are lies that kill, and the people sponsoring them number in the tens of thousands. Some are well known political figures and celebrities. Others are complete unknowns: the loudmouth at the bar, who is never too drunk to practice a little medicine without a license, freely dispensing Covid-related advice garnered from authoritative medical sources with names like Fox News and Newsmax. Together they have created a tsunami of falsehood, believed by far too many people.

This is a crime of a scope so massive, and so consequential, the crime scene encompasses the entire country. It is, alas, also a crime which will almost certainly never be prosecuted. There have been occasional prosecutions for fraud against people stealing relief funds or profiting from fake Covid cures, but that’s a very different thing from prosecuting someone solely for spreading dangerous nonsense.

The action which would most closely resemble true justice, at least for the most grievous of such offenders, would, of course, be criminal prosecution and punishment, but justice doesn’t grow out of pipe dreams and what-ifs. And the reality is, while a few prosecutions might theoretically be possible based upon the wording of specific statutes, it is very unlikely anyone will ever be charged, let alone convicted, of murder or even manslaughter on the basis of this deceit.

I don’t specialize in criminal law, but I see strong reasons a prosecutor would be reluctant to pursue such a prosecution, even aside from First Amendment concerns. To begin with, how would you ever get the required unanimous verdict in a criminal case when such a large percentage of Republicans are not only opposed to vaccination, but also believe people like them are victims of liberal condescension. Also, while deceit, or even extreme recklessness regarding a life-or-death matter like this, would probably meet the legal definition for involuntary manslaughter, proving wrongdoing is just the first step. A prosecutor would still have to prove beyond a reasonable doubt the existence of causation — that the wrongful act of a specific defendant caused the death of a specific victim — and it’s hard to see how that could be done.

For one thing, how often would you be able to prove that out of the erupting volcano of misinformation coming from thousands of different sources, the words of one particular defendant were key to the victim making the wrong decisions? An even bigger problem would be in trying to prove, again beyond a reasonable doubt, a specific victim would have survived if not led astray. Medical science simply can’t offer that kind of precision. Studies have shown that the wrongful politicization of this public-health crisis has led to hundreds-of-thousands of unnecessary deaths, with Republicans dying at twice the rate of Democrats. But what it can’t do is pinpoint, with any degree of certainty, whether vaccination or proper medical care would have prevented death in one specific case.

The fact criminal prosecutions probably aren’t the answer doesn’t mean, however, this crime should be ignored. We need to find a different road to achieving at least some degree of justice.

Civil lawsuits would have a better chance of success, but that would also be a hard slog for many of the same reasons. Litigation is unlikely to be the answer.

One thing is certain. Any path to justice must begin with truth. In fact, truth itself would be a form of justice. America today doesn’t have a united vision of truth surrounding Covid. There is the scientific vision and the MAGA vision. And while, in reality, one of these views is clearly mostly right, while the other is mostly wrong, both have power. If we are to truly move ahead as a nation, let alone do better when the next pandemic inevitably hits, this must change.

Truth hasn’t fared well in recent years. Under Donald Trump’s tender mercies, dishonesty has become, not just acceptable, but fashionable to the far right. It’s what the cool kids do. Their lies can’t be allowed to be the last word — not on this.

It is time to do what realistically is the only thing we can do. We need to reinvent the concept of an investigating commission of wise men and women. A version of this has actually been extensively debated in Congress, but the proposal seems to be losing steam. In any case, the current proposals seem far too focused on the governmental response which, while important, is only a small part of a big story. An appropriate mission statement for the commission would be succinct, but broad: to examine and report on what went wrong in our national response to Covid, whether there were unnecessary deaths, and, if so, how many and why. People with impeccable reputations and the ability to understand complex scientific data would need to be recruited to serve as members.  

A commission should collect documentary evidence and take testimony from victims, healthcare providers, government officials, medical experts, Covid deniers and others. While commission members should be permitted to ask questions, most questioning of witnesses should be handled by experienced trial attorneys. Ideally, such a commission would be created by Congress, so it would have subpoena power.  That is not, however, absolutely necessary.

If, as now seems likely, the political process can’t get the job done, consideration should be given to doing it privately, perhaps in conjunction with a foundation or university. The victims and the experts would generally agree to testify without requiring a subpoena. People who had reason to fear the proceedings because of their conduct during the pandemic would then have a tough decision. Testify to defend themselves or allow the accusations go unanswered.

Hearings should be open to the public with television cameras welcomed. And, yes, at the end of the process the commission should produce the obligatory report. It should, however, be clearly understood that their job would include assessing blame where due, and naming names, favorably and unfavorably, when deserved. And it should investigate the actions of both governmental and non-governmental actors.

It’s not perfect justice. It may not even be particularly good justice. But it is almost certainly the best we can do. And it’s a hell of a lot better than doing nothing as this crime slowly disappears into the shadows of history.