Of all the reprehensible things President Trump has done during the pandemic, at the top of that list, no doubt, has to be his most recent gambit of callous self-promotion–forcing West Point Cadets to return from quarantine, at their various residences across the country, for graduation in New York to watch a commencement address no one asked for.
In seeking this publicity stunt for his reelection campaign, Trump has placed the lives of the Cadets in grave danger, particularly since West Point is located 1 hour from New York City, the epicenter of the pandemic.
Disturbingly, in the event a Cadet gets sick, or even dies, from COVID as a result of being forced to attend the commencement ceremony, they and their families will have little to no legal recourse.
In an August 2017 ruling by the United States Second Circuit Court of Appeal in Doe v Hagenbeck, 2nd U.S. Circuit Court of Appeals, No. 15-1890, the Court held, “Civilian courts are ill-equipped to second-guess military decisions regarding basic choices about the discipline, supervision and control of service members.” In Doe v. Hagenbeck, a female cadet who was raped at West Point in 2010 brought a lawsuit against the administration of West Point in federal court for her damages. The Court held that because Doe was a student at West Point, she therefore suffered her injuries “in connection with her military service,” and thus could not seek damages.
Here, the disturbing ruling from Doe v. Hagenbeck would likely apply to a Cadet who got sick or died from COVID based on Trump forcing them to endure his commencement speech since it would be deemed “in connection with” military services. Thus, West Point could not be sued for its involvement with the commencement speech.
But what about Trump? Could he be sued.
Sadly, the answer is no?
Presidential immunity was addressed in the 1982 case, Nixon v. Fitzgerald. The Supreme Court held that presidents are immune from civil lawsuits brought against them for official acts committed as commander in chief. The majority opinion, by Justice Lewis Powell, held that immunity from civil cases was essential to keep the chief executive free to make decisions without fear of civil liability.
President Trump likely recognizes, or has been told, that he faces no legal liability for holding a commencement speech with a military academy. As for his political exposure, that is to be seen . . .