On the Prospects for County- and State-Level Investigation and Prosecution of CDC Personnel and Others for Wrongdoing in the COVID-19 Vaccination Era

Introduction

Centers for Disease Control and Prevention (CDC) emails and documents provide reasonable suspicion to investigate identifiable CDC personnel for committing the state law crime of reckless endangerment during the February through May 2021 phase of the COVID-19 vaccination campaign and beyond. A county attorney or state attorney general could lawfully file a criminal charge in the name of his or her state against a federal official in any case meeting the legal threshold required to file. This article, written to be accessible to both general readers and legal professionals, posits a prosecution for reckless endangerment, discusses applicable legal standards and statutes, precedent for state-level prosecution of federal officials, Supremacy Clause immunity, jurisdiction, venue, removal, statute of limitations, “small potatoes” concerns, related subjects, and broaches an alternative to retributive justice. I acknowledge some legal theories herein are novel.

While I support calls for and efforts toward large-scale international- and federal-level investigations and prosecutions if supported for COVID-19-era wrongdoing, I invite aligned readers to consider “thinking small” in the meantime and starting somewhere, that is, to consider investigative and prosecutorial undertakings not dependent on difficult-to-obtain political control of the power levers required to undertake international- and federal-level efforts by perhaps unwieldy or compromised coalitions. Though I base my discussion mostly in the law of one state and one federal circuit, the notions herein are intended to stimulate action by aligned persons in all states with similar laws (and accessible grand jury systems), including county attorneys, state attorneys general, legislators in states having legislative investigative powers (which can yield evidence supporting referrals for prosecution), and sheriffs.

As stated in my first article on this subject, co-authored with Amy Kelly, “FOIA’d CDC Emails Reveal Disturbing Myocarditis Timeline Warranting Investigation: Different Messaging Internally Vs. Publicly About COVID-19 Vaccines and Myocarditis.” – DailyClout, I do not rush to judgment, because I recognize facts which raise questions often have innocent explanations, investigations are intended to investigate, they can serve to dispel suspicion as effectively as to confirm it.  Also, I would be the first to advocate for defending the constitutional rights of any accused person against the slightest hint of unfairness in any forthcoming criminal proceedings.

All dates below are in 2021 unless otherwise indicated. Rather than inserting hyperlinks after every factual assertion supported by primary source documents or other content linked in the first article, I cite by the date in the chronology provided there, under which the supporting link or citation is provided. For example, when I assert, “[i]n late February and early March personnel at the Israeli Ministry of Health (IMOH) contacted CDC about ‘a large number of reports of myocarditis, particularly in young people, following the administration of the Pfizer vaccine[,]’” the reference herein will be “(March 4)” which is the date in bold font in the first article under which the supporting link or citation appears. Exceptions are my citation to the published work of Dr. Karl Jablonowski and Dr. Brian Hooker, any citation to content not included in the first article, and to correct one mis-citation there. While this posited hypothetical considers Dr. Tom Shimabukuro, (Tom Shimabukuro | Blogs | CDC), CDC’s “vaccine safety team lead on the CDC COVID-19 Vaccine Task Force” (March 4), I do not single him out: identified further below are additional CDC personnel and still others whose emails suggest either possible reasonable suspicion to investigate them for reckless endangerment, to dispel or confirm suspicion, or that interviewing them could yield information relevant to determining whether there is reasonable suspicion to investigate others.

Below, I recite facts supporting reasonable suspicion to investigate Dr. Shimabukuro for the crime of reckless endangerment, describe the reasonable suspicion standard, and apply those facts and that standard to that crime’s definition, then proceed from there. Again, investigations may dispel or confirm reasonable suspicion.

Facts to Decide If Reasonable Suspicion Exists

In late February and early March, personnel at the Israeli Ministry of Health (IMOH) contacted CDC about “a large number of reports of myocarditis, particularly in young people, following the administration of the Pfizer vaccine.” (March 4) By early March, at the latest, Dr. Shimabukuro participated in intra-CDC dialogue about responding to IMOH and began “working with FDA [U.S. Food and Drug Administration] to respond” to IMOH.  Id.  CDC emails show a Zoom meeting between IMOH and CDC personnel was arranged, during which IMOH personnel shared their myocarditis data. Id.

Around that time, an undated CDC Word memorandum titled “Summary of VAERS Report of myocarditis, pericarditis and myopericarditis following vaccination with mRNA COVID-19 vaccines” (March 4) was drafted by an unidentified author, stating in part: “This memo responds to questions posed from [IMOH] to the FDA and CDC. They are investigating a safety signal of myocarditis[]/myopericarditis in a younger population (16[]-30 years old) following administration of Pfizer-BioNTech Covid-19 vaccine.” Id. (emphasis added). And “[IMOH] reports” “around 40 cases of this adverse event.” “A search of [VAERS]” “on February 23, 2021[,] revealed 27 cases (6 cases of myocarditis, 7 cases of myopericarditis, 14 cases of pericarditis).” Id. The memo discusses search criteria used, review and categorization methodology, and inclusion and exclusion methodology, further stating: “[T]he reporting rate of myopericarditis following administration of the mRNA COVID-19 vaccines was low and estimated to be 0.7 per million doses of vaccine administered. However, the limitations of passive surveillance such as under-reporting, lack of a control group, missing and incomplete data make it challenging to assess causation. Thus, FDA has not made a final determination regarding the causality between myopericarditis and the mRNA COVID-19 vaccines. I will continue to monitor this outcome in active and passive surveillance.” Id.

On March 8, Dr. Shimabukuro received an email from a Western Australia public health official asking if he had “information on background rates” about reports of both “myocarditis and appendicitis following COVID-19 vaccines.” (March 8)  As part of multi-recipient email discussions spanning through April 1, Dr. Shimabukuro provided the Australians with a draft manuscript of an article under review at Vaccine; information in an email, which takes up two-thirds of a page when printed, to be kept “close hold[,]” all of which is redacted from Freedom of Information Act (FOIA) responsive documents; and attachments comprised of “some ACIP [Advisory Committee on Immunization Practices] COVID-19 vaccine safety technical subgroup presentations” to be “treat[ed]” “as confidential[.]” Id.

On April 1, John R. Su, MD, PhD, MPH, Vaccine Safety Team CDC COVID-19 Vaccine Task Force, sent an email with “RE: VAERS Review of Myocarditis/Myopericarditis for DoD [Department of Defense] Discussion Tomorrow” in the subject line, with an attachment titled “VAERS myopericarditis Vaccine 2021.pdf,” one recipient of which was Dr. Shimabukuro. (April 1).

On April 6, Dr. Shimabukuro sent the agenda items for the “USG [US Governors’] vax safety coordination call[.]” The five agenda items included these three: “DoD myocarditis case series preview[,]” “VSD [Vaccine Safety Datalink] and VA [Veterans’ Affairs] efforts for signal refinement for PE [pulmonary embolism] and AMI [acute myocardial infarction][,]” and “CDC update on CVST [cerebral venous sinus thrombosis] epi and CVST reports to VAERS[.]” (April 6).

On April 12, Dr. Shimabukuro likely received an email with a slide deck in PDF format attached, the subject of which was “Monday’s VaST [Vaccine Safety Technical Work Group] presentation on Myocarditis following COVID-19 Vaccination[.]” (April 11, 12) Like in the first article, I stand by using “appears,” “likely,” and “suggests” because I am making reasonable surmisals from the emails’ content and context in FOIA records heavily redacted in places. I am open to challenge on my surmisals.

On April 15, Dr. Shimabukuro, replying to an email from a Tufts University medical doctor, acknowledged “[t]here have been reports of myocarditis following mRNA vaccines.” (April 15)

Also, Dr. Shimabukuro states he was among those monitoring for myocarditis from the beginning of the COVID-19 vaccine rollout: “I have been monitoring myocarditis/pericarditis as a VAERS [Vaccine Adverse Event Reporting System] adverse event of special interest from the beginning.” (April 19) Since he acknowledges he was using VAERS, id., it is reasonable to infer he knew what VAERS data was showing, specifically, by February 19 VAERS reports “implicat[ed] myocarditis [as] causally connected to the COVID-19 vaccine in young males with greater than 95% confidence – the typical threshold beyond reasonable doubt.” Jablonowski KD, Hooker B, Delayed Vigilance: A Comment on Myocarditis in Association with the COVID-19 Injections. International Journal of Vaccine Theory, Practice, and Research, 2(2), 651.1–651.4, View of Delayed Vigilance (Delayed Vigilance); see also, Jablonowski KD, Hooker B, et al., Lock the Doors: The Myocarditis Disaster and a call for the broad examination of the CDC and FDA | Medical Research Archives. And by the week of April 2: “VAERS [had received] enough serious adverse event reports implicating a causal connection between the COVID-19 vaccine and myocarditis in young males with a 99.9% confidence.” (Delayed Vigilance).

At a minimum it is fair to impute to Dr. Shimabukuro direct knowledge of those facts about myocarditis incidence after COVID-19 vaccination, except for the content of both the Word memorandum and the PDF slide deck about “Myocarditis following COVID-19 Vaccination[.]” For those two exceptions, it is reasonable provisionally to infer he knew the content of both those documents because he was CDC’s vaccine safety team lead on CDC’s COVID-19 Vaccine Task Force. I say “[a]t a minimum” because I am working from two heavily redacted FOIA productions, both of which are linked frequently in the first article.

Yet, on April 19, when Dana Meaney-Delman, MD, MPH, FACOG, then Chief, Infant Outcomes Monitoring Research and Prevention Branch, CDC, sent an email at 9:42 AM to Dr. Shimabukuro and others with “Pericarditis and Mrna [sic] vaccines” in the subject line, stating: “Ann S[chuchat] is on the deputies call with WH [White House] right now and is asking if there has been any signal with pericarditis and mRNA vaccines[,]” (April 19) he emailed back, stating: “DoD and the Israel MOH think they have a signal for myocarditis with mRNA vaccines, but there is potentially a lot of ascertainment bias in the DoD data. I don’t have any evidence to suggest a signal or a safety problem for myocarditis or pericarditis with mRNA vaccines from VAERS and VSD surveillance and FDA and VA have not detected any signals in their monitoring.” (April 19) (emphasis added).

There was nothing “think” about “Israeli MOH think they have a signal for myocarditis[,]” (April 19) (emphasis added) because, according to CDC’s own Word memorandum titled “Summary of VAERS Report of myocarditis, pericarditis and myopericarditis following vaccination with mRNA COVID-19 vaccines[,]” (March 4), IMOH was “investigating a safety signal[,]” meaning there was a safety signal, and IMOH was investigating it: “They are investigating a safety signal of myocarditis[]/myopericarditis in a younger population (16[]-30 years old) following administration of Pfizer-BioNTech Covid-19 vaccine.” Id. The Israelis certainly thought so: “We are seeing a large number of myocarditis and pericarditis cases in young individuals soon after Pfizer COVID-19 vaccine.” (March 3) (emphasis added).  Also, because of heavy redactions in the FOIA productions, I don’t know what the data the Israelis provided to CDC and its vaccine safety team lead on CDC’s COVID-19 Vaccine Task Force showed about myocarditis incidence.

Maybe there will be later semantic disagreement about what constitutes a “safety signal,” though it is clearly defined by Health and Human Services (HHS) in its “Guidance for Industry Good Pharmacovigilance Practices and Pharmacoepidemiologic Assessment.” Objective statisticians may have something to say about what constitutes a safety signal, but Dr. Shimabukuro’s stating, “[w]e don’t have any evidence to suggest” “a safety problem for myocarditis or pericarditis with mRNA vaccines” simply is not a supportable statement, in light of the foregoing.

Then, 41 minutes later, Dr. Shimabukuro emailed: “I reviewed the VSD RCA [Rapid Cycle Analysis] data this morning and discussed the DoD data. We have substantial doses administered in younger age groups in VSD and don’t have a hint of a signal; it’s actually protective in the vaccinated concurrent comparator. We aren’t really sure why DoD thinks they have a signal[.]” (CDC FOIA 23-00756 CDC responsive records.pdf – Google Drive, 309) (emphasis added).

In that email, Dr. Shimabukuro omitted mentioning IMOH data. In both 41-minute-apart emails, he omitted mentioning the Western Australian communications about myocarditis.

The facts above are gleaned from the un-redacted pages of the two heavily redacted FOIA productions cited in the first article. Given the search criteria for at least one of those FOIA productions was for CDC emails containing only one word—myocarditis—it is reasonable infer when those emails and their attachments are produced un-redacted there may be more facts and information about post-COVID-19 vaccination myocarditis incidence reasonably imputable to Dr. Shimabukuro and others.

The Reasonable Suspicion Legal Standard

Law enforcement personnel “may detain and question an individual when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” State v. Markland, 2005 UT 26, ¶ 10, State v. Markland (utcourts.gov) (for all citations to Markland herein, any internal quotation marks and citations to other authority therein are omitted). “[T]o justify such a detention, the officer’s suspicion must be supported by specific and articulable facts and rational inferences.” Id. “A determination that reasonable suspicion exists need not rule out the possibility of innocent conduct.” Id. This is the lowest legal standard in criminal law, “it falls considerably short of satisfying a preponderance of the evidence standard[,]” id., a standard that “requires demonstrating that the proposition is more likely true than not true[,]” (preponderance of the evidence | Wex | US Law | LII / Legal Information Institute (cornell.edu), sometimes thought of “as requiring a finding that at least 51  percent of the evidence favors the [disputed proposition].” (Evidentiary Standards and Burdens of Proof in Legal Proceedings | Justia). Importantly, when deciding reasonable suspicion, “courts must view the articulable facts in their totality and must avoid the temptation to evaluate them in isolation.” Markland, id.

The Crime of Reckless Endangerment

Reckless endangerment defined:

An actor commits reckless endangerment if, under circumstances not amounting to a felony offense, the actor recklessly engages in conduct that creates a substantial risk of death or serious bodily injury to another individual.

Utah Code § 76-5-112(2), Utah Code Section 76-5-112.

“Conduct means an act or omission” to act.

Utah Code § 76-1-101.5(5), Utah Code Section 76-1-101.5.

Reckless endangerment does not require death or serious bodily injury to occur, it only requires the reckless conduct to create a substantial risk of one of those things. (Even if it did, victims would not be hard to find, via word of mouth or organizations like React19, Home – React19.

Utah Code § 76-5-112(2), Utah Code Section 76-5-112.

“[S]erious bodily injury means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.”

Utah Code § 76-1-102.5(17), Utah Code Section 76-1-101.5.

Myocarditis, which impairs or can impair the function of the heart organ or creates a substantial risk of death (both really), meets the “serious bodily injury” definition.

Reckless endangerment is a class A misdemeanor, punishable by a fine of $2,500 and a jail term of 364 days when committed by a person, as opposed to an entity. Entity investigation and prosecution if supported under state law is a separate subject.

Utah Code §§ 76-3-301(1)(c), Utah Code Section 76-3-301 (fine); 76-3-204(1), le.utah.gov/xcode/Title76/Chapter3/76-3-S204.html?v=C76-3-S204_2019051420190514 (jail).

For any readers apoplectically thinking “What! 364 days? That’s all?” keep reading to the “Small Potatoes” section.

Applying the Law to the Facts

So, under the language of the reckless endangerment statute, do the facts above and the rational inferences from them support by considerably less than a more likely than not standard, by a considerably less than 51% evidence in support of the proposition standard, that Dr. Shimabukuro “recklessly engage[d] in conduct[,]” that is, omitting to inform Dana Meaney Delman and others about the evidence of myocarditis incidence after COVID-19 vaccination, knowledge of which can reasonably be imputed to him, so she could have relayed that to Anne Schuchat in the White House deputies meeting (April 19), where Anne Schuchat could have shared that information with those discussing the issue? And did his act of omission “create[] a substantial risk of death [from myocarditis] or serious bodily injury [myocarditis] to another individual[,]” as in Americans who were lining up to get vaccinated at rate of over 1.1 million per day, every day, during the identified period, exposing themselves to a myocarditis risk they might not have taken had they been told? The opposite conclusion, that is, there is no reasonable suspicion to investigate (“nothing to see here, move along”) strains credulity, in light of the facts above. (The 1.1 million per day figure is based on the 112,000,000 number in Delayed Vigilance).

The same analysis applies to Dr. Shimabukuro’s affirmative acts, his affirmative representations that: “I don’t have any evidence to suggest a signal or a safety problem for myocarditis[.]” (April 19) And: “We…don’t have a hint of a signal[.]” (CDC FOIA 23-00756 CDC responsive records.pdf – Google Drive, 309).

By way of understatement, it is fair to impute to Dr. Shimabukuro and others at CDC knowledge that a national vaccination campaign was underway during the February through May 2021 time frame (and beyond) and that millions of people were lining up to get COVID-19 vaccinations.  In terms of the reasonable suspicion standard’s analytical principle that facts must be viewed in their totality, I emphasize the information Dr. Shimabukuro and others had received from external entities about post-COVID-19 vaccination myocarditis incidence came from presumptively reliable sources: public health departments in two developed countries (Australia and Israel) and DoD. CDC also had the VAERS data as identified in Delayed Vigilance.

Also, for the time being, we taxpayers are not privy to the data DoD and IMOH provided CDC. Are we supposed to take CDC’s word for it? And why not mention the Australian communications and the content of the materials he sent them, which he wanted the Australians to keep “close hold” and “confidential[?]” (March 8) And why the equivocal “potentially a lot of ascertainment bias[?]” (April 19) (emphasis added) Given the IMOH data was provided to CDC in March, likely a month before the April 19 White House deputies meeting, there was time to determine that with more specificity; because, given the largest national vaccination campaign in history was underway, the strength or weakness of the myocarditis data coming to CDC is something CDC’s vaccine safety team lead would want to check into. And, since Dr. Shimabukuro was among those “monitoring myocarditis/pericarditis as a VAERS adverse event of special interest from the beginning[,] (May 14) was that or was that not significant enough to disclose?  These are all reasonable questions, the answers to which could dispel or confirm reasonable suspicion.

Whether there is reasonable suspicion to detain Dr. Shimabukuro for questioning for the crime of reckless endangerment to dispel or confirm suspicion doesn’t appear to be a close question. As stated above, I do not single him out. The following persons’ emails suggest either possible reasonable suspicion to investigate them for reckless endangerment, to dispel or confirm suspicion, or that interviewing them could yield information relevant to determining whether there is reasonable suspicion to investigate others, in alphabetical order by surname: John Brooks, MD (May 11, 14, 21); Patrick Caubel (May 22); Grace Lee, MD (April 6); Peter Marks, MD (May 13 (on or about); Elaine Miller (April 20, 26); Jay Montgomery, MD (April 11); Jane Newburger, MD (May 14); Kristen Nordlund (May 14, 27); Ann Schuchat, MD (May 23); John Su, MD (April 1, May 14); Abbigail Tumpey (April 28, May 24, 25); and Rochelle Walensky, MD (May 14, 21, 23, 24, 29). Separately, current CDC Director Mandy Cohen, MD, MPA, Director | About CDC | CDC, regarding ongoing CDC COVID-19 vaccination recommendations.

I emphasize this list is derived from what can be gleaned from documents in two FOIA productions heavily redacted, except in current Director Cohen’s situation. When the documents are eventually produced unredacted, that might provide grounds to dispel suspicion or confirm it.

This is not even to mention individuals holding memberships on various COVID-19-vaccine authorizing, approving, and recommending boards and committees within CDC and FDA who voted to make such authorizations, approvals, and recommendations after a certain date in the COVID-19 narrative, even though knowledge of the endangerment associated with COVID-19 vaccination can reasonably be imputed to them.

Probable Cause and Reasonable Likelihood of Conviction at Trial

The U.S. Supreme Court has defined “probable cause” as “mean[ing] facts and circumstances within [an] officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFellipo, 443 U.S. 31, 37 (1979), Michigan v. DeFillippo, 443 US 31 – Supreme Court 1979 – Google Scholar. For the reasonable likelihood of conviction at trial standard, I borrow from the United States Department of Justice Principles of Federal Prosecution, 9-27.220, Justice Manual | 9-27.000 – Principles of Federal Prosecution | United States Department of Justice, which reads in part: “[A] prosecutor may commence or recommend federal prosecution only if he/she believes that the person will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.” Id.  And, “it should be noted that, when deciding whether to prosecute, the government attorney need not have in hand, at that time, all of the evidence upon which he/she intends to rely at trial, if he/she has a reasonable and good faith belief that such evidence will be available and admissible at the time of trial.” Id.

Assuming a state law enforcement agency investigation, assisted by a law-enforcement-retained statistician and having benefit of un-redacted FOIA productions, yielded unsatisfactory or incriminating answers or additional facts, meeting the standard to file a charge or charges, how could such a case be expected to go?

Precedent for County Attorney Prosecution of Federal Officials and Supremacy Clause Immunity

Wyoming v. Livingston, 443 F.3d 1211 (10^th Cir. 2006), Wyoming v. Livingston, 443 F. 3d 1211 – Court of Appeals, 10th Circuit 2006 – Google Scholar, provides some insight. There, a county attorney’s office charged a U. S. Fish and Wildlife official and a federal contractor with the state law crimes of trespassing and littering on private land while engaged in wolf management activities.

If a CDC official were charged with reckless endangerment in state court, their attorney likely would assert the CDC official is immune from state law prosecution under the doctrine of Supremacy Clause immunity. The U.S. Constitution’s Supremacy Clause has been interpreted to grant immunity to federal officials for “conduct facially violative of a state’s criminal code[,]” Kentucky v. Long, 837 F.2d 727, 744 (6^th Cir. 1988), Com. of Ky. v. Long, 837 F. 2d 727 – Court of Appeals, 6th Circuit 1988 – Google Scholar, but that immunity has limits: “[A] federal officer is not entitled to Supremacy Clause immunity [for conduct facially violative of a state’s criminal code] unless, in the course of performing an act which he [or she] is authorized to do under federal law, the agent had an objectively reasonable and well-founded basis to believe that his [or her] actions were necessary to fulfill his [or her] duties.” Livingston, 443 F.3d at 1222.

Examples where Supremacy Clause immunity protected a federal official from state prosecution for violating a state’s criminal code are where a deputy United States marshal shot and killed a man he thought was about to pull out a gun and shoot the Supreme Court justice the marshal was protecting, after which the marshal was charged with murder, In re Neagle, 135 U.S. 1 (1890), In re NEAGLE, 135 US 1 – Supreme Court 1890 – Google Scholar, and where a special agent for the Bureau of Narcotics and Dangerous Drugs killed a person during a drug raid, after which the agent was charged with second degree murder and involuntary manslaughter. Clifton v. Cox, 549 F.2d 722 (9^th Cir. 1977); Clifton v. Cox, 549 F. 2d 722 – Court of Appeals, 9th Circuit 1977 – Google Scholar.

Whether Dr. Shimabukuro and other CDC personnel withheld post-COVID-19 vaccination myocarditis incidence information from their superiors and, thus, the public (April 19, 28, May 21, 23) is a fact question. If they did, whether they were performing “an act which [they were] authorized to do under federal law[,]” Livingston, 443 F.3d at 1222, appears doubtful on its face, considering CDC self-describes as “the nation’s leading science-based, data-driven, service organization that protects the public’s health[,]” (About CDC | About | CDC) which uses “the Vaccine Adverse Event Reporting System (VAERS) [as] a national early warning system to detect possible safety problems in U.S.-licensed vaccines[.]” (VAERS – About Us (hhs.gov) (emphasis added). Similarly, one would be hard-pressed to conceive “an objectively reasonable and well-founded basis to believe [their] actions were necessary to fulfill [their] duties[,]” Livingston, id., for the same reason. It appears the opposite happened.  Thus, it is doubtful Supremacy Clause immunity would apply. Livingston, a fact-intensive case, held the defendants were entitled to immunity because the record supported “the suspicion that the [Wyoming] prosecution” “was not a bona fide effort to punish a violation of Wyoming trespass law” “but rather an attempt to hinder a locally unpopular federal [wolf management] program.” Id. at 1231.

Jurisdiction

The actions and omissions by CDC personnel were likely made in Atlanta, Georgia, at CDC headquarters. Other persons of interest were likely in other states when they acted. Still, a complaining state may have jurisdiction over persons whose out-of-state actions or omissions affect residents within the complaining state. An example for determining whether a state has jurisdiction when part of a crime is committed in another state goes like this: If X is standing 20 feet inside Wyoming’s border with Utah, and X unlawfully shoots Y who is standing 20 feet inside Utah, the county in Utah where Y was standing when shot may lawfully assert jurisdiction and prosecute X for the crime charged (so can Wyoming), because at least one element of the crime (injury, serious body injury, substantial bodily injury, or death) happened within Utah:

(1) A person is subject to prosecution in this state for an offense which he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if:

(a) the offense is committed either wholly or partly within the state;

(b) the conduct outside the state constitutes an attempt to commit an offense within the state;

(c) the conduct outside the state constitutes a conspiracy to commit an offense within the state and an act in furtherance of the conspiracy occurs in the state; or

(d) the conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense under the laws of both this state and the other jurisdiction.

Utah Code § 76-1-201 (jurisdiction of offenses) (emphasis added), Utah Code Section 76-1-201, see also, Rios v. State, 733 P.2d 242 (Wyo. 1987), Rios v. State, 733 P. 2d 242 – Wyo: Supreme Court 1987 – Google Scholar (discussing subject matter jurisdiction for extra-territorial acts having intra-territorial effects).

And:

(2) An offense is committed partly within this state if either the conduct which is any element of the offense, or the result which is an element, occurs within this state.

Id. (subsection (3) omitted).

And related but not necessary for the posited hypothetical:

(4)(a) An offense which is based on an omission to perform a duty imposed by the law of this state is committed within the state regardless of the location of the offender at the time of the omission.

Id.

Thus, a Utah state court could have jurisdiction over a person whose out-of-state omission to act recklessly endangered Utah residents. Same goes for other states having analogous jurisdictional statutes.

The U.S. Code of Military Justice does not shield CDC personnel in this context. See 10 U.S.C. § 802(a)(8), 10 U.S. Code § 802 – Art. 2. Persons subject to this chapter | U.S. Code | US Law | LII / Legal Information Institute.

Venue and Removal

In criminal cases, venue is the location where a case will be prosecuted, usually the county where the crime happened, which, in this hypothetical, would be the county or counties where people were recklessly endangered.

But when a federal official is prosecuted by a state prosecution agency, like a county, the defense can seek to “remove” (transfer) the case to federal court. “[F]ederal officer removal statutes” “provide federal officers with a federal forum for the entire trial, including determinations of guilt or innocence as well as the applicability of official immunity. This protects against the possibility of a hostile state forum, which might arise when the federal officer is enforcing a locally unpopular national law.” Livingston, 443 F.3d at 1222.

If a county filed a criminal charge against CDC personnel, the defense likely would try to remove the case from state court to federal court. Removal would not be fatal to the prosecution. A federal judge would preside over the case, and guilt or innocence would be decided by a jury drawn from a larger pool of prospective jurors, instead of being presided over by a state court judge and decided by a jury drawn from a countywide pool.

Statute of Limitations

The time limit within which to file reckless endangerment, a class A misdemeanor, is two years, Utah Code § 76-1-302(1)(b), Utah Code Section 76-1-302, which has already expired for conduct occurring from February through May 2021. Any defendant charged under my hypothetical would argue that it’s too late to file a case. I have three responses.

First and easiest, Wyoming has a reckless endangerment statute, WY Stat § 6-2-504, Title – 6.docx (wyoleg.gov) (1997) and Wyoming has no statute of limitations for crimes. So, Wyoming county attorneys could file such cases if supported anytime.

Second and more attenuated, “[t]he period of limitation does not run against any defendant during any period of time in which the defendant is out of the state following the commission of the offense.” Utah Code § 76-1-304(1), Utah Code Section 76-1-304. So, arguably, assuming CDC personnel and others have not spent two years in Utah or another state with a two-year statute of limitation since the February through May 2021 time frame, any forthcoming prosecution is not time-barred.

At first blush that argument may seem to violate the absurd results doctrine relating to statutory interpretation. See, e.g., State v. Jeffries, 2009 UT 57, ¶ 8, State v. Jeffries (utcourts.gov) (“Where a statute’s plain language creates an absurd, unreasonable, or inoperable result, we assume the legislature did not intend that result.”). The absurd result putatively being a class A misdemeanor could be prosecuted many years after it was committed, running counter to the public policies underlying statutes of limitation. See generally, Paul H. Robinson & Tyler Scott Williams, Mapping American Criminal Law 184-185 (Praeger 2018).  The alternative interpretation is that the tolling provision above (“does not run” when “the defendant is out of the state following the commission of the offense”) does not mean what it says. Relatedly, “statutes of limitation” “are also controversial” “and there exists a trend toward lengthening the limitation periods and increasing the number of offenses that are altogether exempt.” Id. at 181.

Third, CDC recommendations for COVID-19 vaccination have been unrelenting, Timeline: COVID-19 Vaccines and Myocarditis | The Epoch Times, up through at least June 27, 2024. CDC Recommends Updated 2024-2025 COVID-19 and Flu Vaccines for Fall/Winter Virus Season | CDC Online Newsroom | CDC (“Our top recommendation for protecting yourself and your loved ones from respiratory illness is to get vaccinated,” said [CDC Director] Mandy Cohen, M.D., M.P.H. “Make a plan now for you and your family to get both updated flu and COVID vaccines this fall, ahead of the respiratory virus season.”). So have FDA approvals, up through at least August 22, 2024. FDA Approves and Authorizes Updated mRNA COVID-19 Vaccines to Better Protect Against Currently Circulating Variants | FDA. These dates are well within statutes of limitation and these recommendations and approvals have been made notwithstanding data about elevated risk of myocarditis after COVID-19 vaccination, for example, Safety of the BNT162b2 mRNA Covid-19 Vaccine in a Nationwide Setting | New England Journal of Medicine (nejm.org), and other post-vaccination adverse events, Vol. 3 No. 1 (2023): Injuries, Causes, and Treatments, Part 1 | International Journal of Vaccine Theory, Practice, and Research (ijvtpr.com), including in children, Number of Children Who Died After COVID Shots Much Higher Than VAERS Reports Indicate, Analyst Says • Children’s Health Defense (childrenshealthdefense.org). Recently, FDA authorized a COVID-19 vaccine without human clinical data. FDA Approves and Authorizes Updated mRNA COVID-19 Vaccines to Better Protect Against Currently Circulating Variants | FDA (“For today’s approvals and authorizations of the mRNA COVID-19 vaccines, the FDA assessed manufacturing and nonclinical data to support the change to include the 2024-2025 formula in the mRNA COVID-19 vaccines.”).

‘Small Potatoes’ Concerns

As stated above, reckless endangerment is a class A misdemeanor, punishable in Utah by a fine of $2,500 and a jail term of 364 days when committed by a person (as opposed to an entity). That may seem a small sanction for the conduct and consequences at issue. But, considering the possibility of one count of reckless endangerment for every person recklessly endangered or who actually sustained serious bodily injury from myocarditis, the theoretical number of chargeable reckless endangerment counts is high. That, plus the possibility of consecutive 364-day jail sentences, opens the theoretical possibility of substantial jail sentences for federal officials and others, including but not limited to members of various COVID-19-vaccine authorizing, approving, and recommending boards and committees who continue to vote to authorize, approve, and recommend COVID-19 vaccines in light of extant data and studies showing adverse event rates. They may want to think twice about blithely undertaking their actions, recently without clinical data, as cited above, and consider whistle blowing instead. As stated above, even if courts were to rule a victim is needed to prove a reckless endangerment case, numerous such victims would not be hard to find, via word of mouth or organizations like React19, Home – React19.

Related Subjects

Whether post-COVID-19 vaccination myocarditis is rare has been debated. One thing is certain: when incidence rates of myocarditis occurring after non-COVID-19 vaccines administered in the pre-COVID-vaccination era are compared with incidence rates of myocarditis occurring after COVID-19 vaccination, post-COVID-19 vaccination myocarditis incidence is anything but rare, as the hockey stick graph near the end of the first article shows. It would likely be a jury question whether that context and distinction supports the “substantial risk” element of reckless endangerment. That context and distinction should be presented and argued to any future jury. Relatedly, see SARS-CoV-2 mRNA vaccine-related myocarditis and pericarditis: An analysis of the Japanese Adverse Drug Event Report database – ScienceDirect (“In the Japanese population, SARS-CoV-2 mRNA vaccination was significantly associated with the onset of myocarditis/pericarditis.”), reported on here: Study Finds 9.6% Fatality Rate Among People Who Reported Myocarditis or Pericarditis After an mRNA COVID Vaccine • Children’s Health Defense (childrenshealthdefense.org) (“A 9.6% case fatality rate for a vaccine side effect largely in young healthy men is astronomical and clinically unacceptable[.]”)

For any aligned line-level prosecutors or others reluctant to discuss in their workplace the prospect of such an investigation and prosecution, Anderson v. McCotter, 3 F. Supp. 1223 (D. Utah 1998), Andersen v. McCotter, 3 F. Supp. 2d 1223 – Dist. Court, D. Utah 1998 – Google Scholar, may be useful for gauging the extent to which such discussions would enjoy First Amendment protection. This paragraph does not constitute legal advice. Readers are responsible for their such discussions.

For investigative personnel in a complaining state to question, let alone detain, CDC personnel in Atlanta presents obvious challenges; and any such personnel would likely decline to speak with state law enforcement from a complaining state (or their own state) and assert their right to silence and to a lawyer, which are their rights, which I support. Though, it’s possible the threshold to file a charge or charges could be met from un-redacted emails, documents, and interviews with others. For that, state statutes regarding subpoena powers in aid of criminal investigations, for example, Utah Code § 77-22-1 et seq., le.utah.gov/xcode/Title77/Chapter22/77-22-S2.html?v=C77-22-S2_2019051420190514, and the Uniform Interstate Depositions and Discovery Acts, for example, Utah Code § 78B-17-101 et seq., le.utah.gov/xcode/Title78B/Chapter17/78B-17.html?v=C78B-17_1800010118000101, of which Georgia is a member state, GA Code § 24-13-114 (2022), Georgia Code § 24-13-110 (2022) – Short Title :: 2022 Georgia Code :: US Codes and Statutes :: US Law :: Justia, could be explored as ways to get currently redacted emails and documents in un-redacted form. Alternatively, an aligned Member of Congress could request the FOIA productions be made public in unredacted form. Office of Information Policy | FOIA Update: OIP Guidance: Congressional Access Under FOIA (justice.gov).

Above, I discussed only one serious adverse event, myocarditis. Another avenue for investigative and prosecution efforts if supported includes the “serious bodily injury[,]” meaning the “impairment of the function of any bodily member or organ[,]” Utah Code § 76-1-102.5(17), Utah Code Section 76-1-101.5, related to female infertility or impairment of fertility occurring after COVID-19 vaccination.

Relevant questions would include: what authorizations, approvals, and recommendations for COVID-19 vaccination were made? And what was the state of the knowledge of the risk to fertility—that is, the risk of impairment of the function of any reproductive bodily member or organ—posed by the COVID-19 vaccines imputable to federal officials and other persons on boards and committees when they voted for authorizations, approvals, and recommendations, to determine if their acts of voting could constitute reckless endangerment. Relatedly, see (1) BREAKING: Israeli Study Explains How Pfizer-BioNTech mRNA Shot Causes Menstrual Irregularities (substack.com), Report 69: BOMBSHELL – Pfizer and FDA Knew in Early 2021 That Pfizer mRNA COVID “Vaccine” Caused Dire Fetal and Infant Risks, Including Death. They Began an Aggressive Campaign to Vaccinate Pregnant Women Anyway. – DailyClout, and Report 37: Pfizer, FDA, CDC Hid Proven Harms to Male Sperm Quality, Testes Function, from mRNA Vaccine Ingredients – DailyClout.

Additional subjects to later explore include determining whether sufficient facts exist to support either legislative inquiry into the actions of state and county health department officials, or investigations of them for violations of state official misconduct statutes, some of whom appear to still be acting as unquestioning pass-through conduits for CDC policy, itself a captured agency, according to its former Director Robert Redfield, who recently wrote “Kennedy is right: All three of the principal health agencies suffer from agency capture. A large portion of the FDA’s budget is provided by pharmaceutical companies. NIH [National Institutes of Health (NIH) | Turning Discovery Into Health] is cozy with biomedical and pharmaceutical companies and its scientists are allowed to collect royalties on drugs NIH licenses to pharma. And as the former director of the Centers for Disease Control and Prevention, I know the agency can be influenced by special interest groups.” Donald Trump Has a Plan to Make America’s Children Healthy Again. It’s a Good One | Opinion – Newsweek.

For example, currently the Utah Department of Health and Human Services (UDHHS) website, Immunize | Immunize (utah.gov) provides a link for Adults Immunization Recommendations | Immunize (utah.gov), incorporating by reference CDC’s vaccination recommendations, with a radio button titled “Centers for Disease Control & Prevention Immunization Schedules[,]” which returns “The page you’re looking for was not found.”  UDHHS provides no warning to prospective COVID-19 vaccinees, even now, notwithstanding the amount of extant adverse event information. Also, currently the Salt Lake County Health Department’s (SLCOHD) similar “Recommended Immunizations[,]” Immunizations | Salt Lake County, has a radio button titled “Adult Immunization Schedule[,]” which returns a redirect to CDC’s current vaccination recommendations, Recommended Adult Immunization Schedule for ages 19 years or older; 2024 U.S. (cdc.gov), the first entry of which is “COVID-19 vaccine[.]” SLCOHD provides no warning to prospective COVID-19 vaccinees, even now, notwithstanding the amount of extant adverse event information. (websites linked in this paragraph accessed 10/13/24).

As an aside, in recent U. S. Senate testimony Dr. Redfield stated: “[T]here was not appropriate transparency from the beginning about the potential side effects of these [COVID-19] vaccines[,]” one component of which induces “a very strong pro-inflammatory response, which is problematic.” Risky Research: Oversight of U.S. Taxpayer Funded High-Risk Virus Research – Committee on Homeland Security & Governmental Affairs (senate.gov) beginning @ 1:20:00. And: “I do think one of the greatest mistakes that was made, of course, was mandating these vaccines. They should have never been mandated. It should have been open to personal choice. They don’t prevent infection. They do have side effects.” Id.

State medical board members’ actions against physicians for prescribing effective alternative medications or employing effective alternative treatments could either be subject to legislative inquiry or scrutinized under state official misconduct statutes, Dr. Meryl Nass Rejects Maine Medical Board’s Conditions for Reinstating Medical License • Children’s Health Defense (childrenshealthdefense.org). Similarly regarding school district officials’ actions, cf., Health Freedom Defense Fund, Inc. v. Carvalho, 104 F.4th 715 (9th Cir. 2024), 22-55908.pdf (uscourts.gov).

If COVID patients have been kept against their will in hospitals, hospital personnel actions could be scrutinized under state unlawful detention statutes, and where hospital personnel have administered dangerous protocols resulting death, negligent homicide statutes could be considered.

For the above suggestions about additional subjects and actions to be considered, explored, inquired about, and scrutinized, I reassert my cautionary statement about not rushing to judgment.

I leave it to others to explore the possibilities for investigation and prosecution if supported for commission of felonies, though my discussion of applicable legal standards, precedent for state prosecution of federal officials, Supremacy Clause immunity, jurisdiction, venue, statute of limitations, and at least some of the related subjects would apply to investigations and prosecutions if supported of state law felony crimes.

Again, I acknowledge the novelty of some legal theories herein and invite constructive criticism of them. I also invite readers to build on these ideas, including by suggesting articles, studies, and evidence documenting post-COVID-19-vaccination harms that should put any reasonable official, person, or entity on notice of the endangerment associated with any COVID-19 vaccine recommendations and mandates they may make. I also invite aligned readers to bring these ideas to the attention of their county attorneys, state attorneys general, legislators in states having legislative investigative powers (which can yield evidence supporting referrals for prosecution), and sheriffs.

The election season provides an opportunity to send this article to candidates for county attorney, state attorney general, and state legislatures, incumbents and contenders alike, and to raise this subject at town hall and similar candidate meetings. For any who so choose, I suggest printing this article and mailing it, to distinguish it from the flow of easily-dismissible digital information traffic, as well as emailing it, and suggest non-lawyers include in their cover letter language to the effect: “I’m not a lawyer, so I don’t know if the article has legal merit, but if it does, I encourage you to explore the possibilities it discusses.”

What to Do When There Are So Many to Investigate or Interview

There is no shortage of government personnel to investigate or interview related to COVID-era actions, at international, federal, state, county and local levels of government, and in corporations, other entities, hospitals, and workplaces. Is the best solution to spend years investigating and prosecuting? Or is there another way?

In broaching an alternative to retributive justice, I turn to Linda G. Mills, Violent Partners (Basic Books 2008), and ask readers to withhold judgment. In so doing, I do not claim Mills supports either this article’s content or applying her thinking to its content.

In Violent Partners, when discussing alternatives to retributive justice for domestic violence offenders, Mills recounts how “[w]hen apartheid was abolished in South Africa, Archbishop Desmond Tutu knew” “retributive justice” would not work. Id. at. 206. “And so he set up the” “the largest Truth and Reconciliation Commission,” (TRC) “founded on the principle that reconciliation depends on forgiveness and that forgiveness can only take place if gross violations of human rights are fully disclosed.” Id. (internal quotation marks omitted) “Although some victims’ families objected to the exchange of truth for amnesty, the vast majority of black South Africans supported this process.” Id. I emphasize this was not blanket amnesty, not an “oh well” approach, it was an exchange of truth, offenders telling the truth about their wrongdoing, all of it, in exchange for amnesty. Victims’ families also received “the opportunity to find out what really happened to their loved ones[,]” “financial support for their families by garnering [sic] the wages of the perpetrators, and they received apologies.” Id. (emphasis added). Neither remorse nor forgiveness were required. Id. at 247, 250. In exchange, perpetrators were spared jail. Mills acknowledges how unpalatable such notions can be in certain circumstances: “sickening to contemplate[.]” Id. at 249.

“Those who did not come forward” “risk[ed] prosecution for their crimes. Over several years, scores of South Africans testified about their role in the murder, imprisonment, and torture of their fellow citizens, and thousands of survivors told their stories.” Id. at 247.

That brief account does not do justice to Mills’ powerful writing on this subject, including her discussion of the partial healing that comes from hearing the truth about wrongdoing from offenders. Before dismissing those ideas as applied to COVID-19-era wrongdoing, I commend skeptical readers to pp. 205-206, 241-252 of Mills’ book, still readily available, and to consider the merit of what she says there.

There may be some who’ve engaged and are engaging in questionable COVID-era-related conduct who will not acknowledge wrongdoing, period. Others may be unlikely to come forward and fully disclose their wrongdoing unless they know they risk being held accountable in the criminal justice system. Still others may wish they had acted differently, more courageously, more knowledgeably, and may want to come forward. TRCs and the prospect of them could encourage that. Make it easier for people to cross over, even now. I hope to develop these nascent thoughts about TRCs and a “thinking small” approach to them in a later post.

There are signs some in the public health establishment may be open to non-narrative perspectives: “I believe we should stop trying to prevent all symptomatic infections in healthy, young people by boosting them with vaccines containing mRNA from strains that might disappear a few months later[,]” wrote Paul A. Offit, M.D. in the New England Journal of Medicine in January 2023. Bivalent Covid-19 Vaccines — A Cautionary Tale | New England Journal of Medicine (nejm.org).

For those who resist accountability and responsibility, I suggest the preceding ideas related to county- and state-level investigation and prosecution if supported and to pursue such efforts for as long as it takes to achieve justice as appropriate on a case-by-case basis.

*Amy Kelly at dailyclout.io contributed the content suggesting infertility or impaired fertility occurring after COVID-19 vaccination as bodily injury, other supporting links, and editing. I thank her (and for a lot more than that).

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