Each state’s Attorney General, among other duties and responsibilities, is charged with defending the constitution and laws of the state and representing the state in litigation. Part of fulfilling these responsibilities involves serving as a general counsel for the governor, the Legislature, and the agencies of the state.

Many citizens are rightly concerned about the politicization of the COVID-19 pandemic and how it is leading to wildly different outcomes at great financial cost and tragic human consequence. So much of this is due to political decision-making, and often those decisions are at odds with or intentionally contrary to the specific recommendations and guidelines offered by responsible public health experts. Responsible politicians are seeking to promote both public health and exonomic health. 

Millions are infected and infections continue at a rate that is threatening healthcare infrastructure. We are approaching 140,000 dead American men, women and children, and these are more than numbers. They are mothers, fathers, sons, daughters, grandparents, family members, friends, employees and co-workers. Each is a story of grief, and in so many cases, of tragic loss. The financial impact to businesses and the unknown long-term health impacts to COVID-19 survivors are yet incompletely determined, but significant.

Americans are increasingly concerned about the apparent disregard by some politicians and officials at federal, state and local level of sound public health advice from proper federal, state and local officials, thus exposing each state’s citizens directly and indirectly to otherwise avoidable sickness and death from the spread of COVID-19, and to financial harm and potential ruin or bankruptcy.

With respect to a state’s elected politicians and other responsible public officials who have authority to put into effect or to relax measures intended to prevent the spread of COVID-19, we request within thirty (30) days, that each state attorney general provide and share publicly a legal opinion on the following question:

When, during this COVID-19 declared pandemic, does the decision and resulting action of an elected or appointed state, county or local official constitute probable cause for criminal charges or give rise to civil liability, if such decision and resulting action is clearly and demonstrably contrary to the recommendations of responsible local, state and federal public health officials, and if such decision or action will increase likely COVID-19 spread and likely result in foreseeable sickness and death, especially when such sickness or death or both can be shown to have resulted without any negligence of the individual harmed or who has died?

We reasonably believe that each state’s politicians and responsible officials and each state’s citizens generally need to be clear on this. Each state's Attorney General should provide legal guidance.

It seems to us that arbitrary and capricious decision-making that results in such harm to citizens and businesses would not, or should not be “protected conduct”. Instead, it is more properly ultra vires and beyond the legal authority of such public officials to expose us citizens unreasonably to political whim in disregard of public health advice, and, therefore, any such politician exhibiting malfeasance, nonfeasance, neglect or even criminal intent with respect to such decisions should be aware of whether it could result in criminal and/or civil liability.