Can Obama Sue Trump Or Breitbart For False Wiretap Claims?
March 6, 2017

Electoral College President Orange Snowflake might have scratched his itchy Twitter finger once too often this past week - or, rather, four times too often. In a series of tweets, His Royal Neediness accused his immediate predecessor - remember him? Barack Obama? the competent, emotionally secure President? - of wiretapping him.

On Saturday morning, at 5:35 a.m. - this person really needs an extra-strength Ambien prescription to have a remote chance of surviving his worst impulses - he first tweeted: “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” He followed that up 14 minutes later with, “Is it legal for a sitting President to be "wire tapping" a race for president prior to an election? Turned down by court earlier. A NEW LOW!” Seven minutes after that, he broadcast, “I'd bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!” And, 10 minutes later, he topped himself with this beauty: “How low has President Obama gone to tapp [sic] my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”

So…in four tweets, he accuses Mr. Obama of purely partisan use of a wiretapping warrant - illegal! - and of being a “Bad (or sick) guy.” Accusations of crimes, malfeasance, and mental illness in 140-character blasts. Very efficient. Unwise, but efficient.

Or, in 45-speak, “Efficient! Unwise!”

We already know that this series of tweets is entirely untethered to fact. On the same day as the tweets appeared, Mr. Obama’s spokesman called them “false.” More significantly, the next day, Former Director of National Intelligence James Clapper debunked the wiretapping allegations on Meet the Press. And, in an unprecedented act - at least, it’s unprecedented in my memory, which is longer than I care to admit - the FBI Director James Comey, who seems to be on his Farewell Penance Tour, apparently has asked the Justice Department to publicly announce that the claim of wiretapping is false.

So, it’s pretty likely this claim of wiretapping of Trump ordered by Obama is completely untrue, given that it’s been denied on the record by multiple knowledgeable sources. I suppose it’s remotely possible that Comey and Clapper are lying or senile and the Electoral College’s Number One Fan is telling the truth, but...well, we all know his track record on truth and it’s bad. Really, really bad. Giving him the benefit of the doubt, his Truthfulness Quotient Very low. On his best days.

It’s poetically just that Orange Zest mentioned “a good lawyer” in this series of tweets, because, if I were Mr. Obama - Mr. Former President and now Mr. Private Citizen Barack Obama - I’d be consulting a plaintiff’s libel lawyer early this week. Mr. Obama ought to ask whom he can sue: the Current Occupant at 1600 Pennsylvania? The rightwing press? Both?

Indeed, there’s been comment on this possibility of litigation in the media, for example on MSNBC. Of course, it would be far better for the nation if any legal proceedings took the form of impeachment in the House and conviction in the Senate, but that's not on the Congressional agenda right now. Barring an eruption of intolerable malfeasance, I don't think that's likely to happen before the 2018 primary season ends. Too many Republicans in Congress value their legislative agenda and incumbency more than the security of this country.

So...whom can Obama sue, and for what? The Current Occupant of the White House, for defamation? Thanks to the right’s relentless pursuit of Bill Clinton, sitting Presidents may be sued in private civil litigation. However, they can only be sued for acts committed before becoming president.

As to official acts while serving as President...meh, not so much. There’s a 1982 Supreme Court case called Nixon v. Fitzgerald that broadly bars a suit against a president based on acts committed while in office. Here’s the Court’s summary of the facts of that case:

During the waning months of the Presidency of Lyndon B. Johnson in 1968, respondent, a management analyst with the Department of the Air Force, testified before a congressional Subcommittee about cost overruns and unexpected technical difficulties concerning the development of a particular airplane. In January, 1970, during the Presidency of petitioner Richard M. Nixon, respondent was dismissed from his job during a departmental reorganization and reduction in force, in which his job was eliminated. Respondent complained to the Civil Service Commission, alleging that his separation represented unlawful retaliation for his congressional testimony.

After Fitzgerald’s whistleblower-retaliation claim was rejected by the Commission, he persuaded a reviewing federal district court to let the case go to trial. Before trial, however, the case climbed the appellate ladder (as is often the case), and the Supreme Court denied Fitzgerald the right to sue. The Court held that former President Nixon was “entitled to absolute immunity from damages liability predicated on his official acts.” The Court further held that “The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office.”

The Court reasoned that

A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.

So…The Tiny-Fingered Orange falsely accused his predecessor of wiretapping him for partisan reasons. While it’s demonstrably false drivel, it probably falls within the expansive absolute immunity he has against suits and within the expansive “outer perimeter” of his duties.

In short, per the Supreme Court, we will have to manage Generalissimo Tangerine by Congress (controlled by obsequious enabling Republicans), the press (still figuring out how to cope with this hurricane of insecure narcissism), subsequent elections (if we’re allowed to vote again), and Himself’s concern with his current statute and historical legacy, if any of us live to write or read history.

Ugh. Good luck to all of us.

That said, there’s a stronger case to be made for Mr. Obama’s considering whether to file a defamation lawsuit against the right-wing media that retailed this wiretapping lie. I won’t include direct links links here to those instrumentalities, but, if you want to get to them, you can start here. Or here.

This might be the kind of case where One Weird Trick - a libel lawsuit - might be able to bring to heel the Right Wing Junk News Industry: Breitbart, Infowars, The Drudge Report, the entire species of bottom-feeders that swim or crawl through the sludge of the right-wing fever swamp. It might even be possible in a defamation lawsuit to do serious damage to their bottom lines - damage that even billionaire Robert Mercer, Breitbart’s financier, might feel and dislike. If Mr. Obama were to succeed in a lawsuit against any of them, he might be able to bankrupt them, à la Hulk Hogan and Gawker.

Before I go further on this, let me point out that I’m a staunch advocate of free speech generally and of the press’s rights under the First Amendment, our first line of defense against tyranny. I subscribe enthusiastically to five of our Fake Media’s premier outlets: The NY Times, The Washington Post, The Guardian, The Washington Post, and the New Yorker. I love them all, even when I’m too depressed by their content to read them on certain days since November 8, 2016.

In my last piece here, I touched on 1st Amendment jurisprudence. Bear with me while I review a little of that here.

The courts basically divide speech into two categories: “protected” and “unprotected.” Protected speech is the kind that can’t be punished under our constitutional system via civil or criminal sanctions such as libel lawsuits or criminal sedition prosecutions. Unprotected speech can be criminally or civilly sanctioned to varying degrees based on content and context.

The ACLU offers a useful way of distinguishing between protected and unprotected speech:

"Two fundamental principles come into play whenever a court must decide a case involving freedom of expression. The first is "content neutrality"-- the government cannot limit expression just because any listener, or even the majority of a community, is offended by its content. In the context of art and entertainment, this means tolerating some works that we might find offensive, insulting, outrageous -- or just plain bad.

The second principle is that expression may be restricted only if it will clearly cause direct and imminent harm to an important societal interest. The classic example is falsely shouting fire in a crowded theater and causing a stampede. Even then, the speech may be silenced or punished only if there is no other way to avert the harm."

An important and long-recognized societal interest is the protection of reputation from defamation. For example, a private person can sue for defamation when a newspaper gets its fact wrong - even by mere mistake - if the publication harms the person’s reputation.

However, in accordance with this least-restrictive-restraint template, a “public official” or “public figure” in the U.S. - a government official or celebrity, for example - can’t successfully sue for defamation even on the exact same misstatements made in the private-person example unless the public figure can establish that the publication knowingly published false and defamatory information or published it in “reckless disregard” of its truth or falsity.

The legal standard for this - the gold standard of defamation law - was established by the U.S. Supreme Court in New York Times v. Sullivan. Every law student studies this case in her first year, and every journalism major should know it by heart if she wants to keep her job as an editor.

The standard is this: "The First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).”

The purpose of this public-official exception to defamation laws is to ensure that debate on issues of public importance - and connected criticism of public officials - can be robust in this country and free of government retaliation and censorship.

As to “public figures” (people who are not officials but have a public profile, like celebrities), the standard applied to journalistic conduct is slightly different. The leading case on public figures is Curtis Publishing Co. v. Butts , where the Court held that “a ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”

Mr. Obama is clearly a public figure: he’s a celebrated author who actually wrote his own books, unlike The Orange Yahoo, a former Senator, and former President. Mr. Obama probably will have to meet the public-figure/“extreme departure” standard to prevail in a defamation suit against any of the right-wing media. He will have show that publishers of these allegations departed “from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”

So can he sue any of the right-wing junk-news organs? Or, rather, the question is can he win?

Apparently, these allegations first surfaced in a radio broadcast by Mark Levin, a rightwing radio host of whom we will say no more. Breitbart re-published Levin’s allegations and added additional “events” that Levin did not mention.

However, it does not appear that Breitbart conducted any conventional journalistic fact-checking in republishing these allegations. Instead, Breitbart strings together a series of circumstantial events, and then alleges that the wiretaps occurred, but there are no sources in Breitbart’s article confirming that wiretaps of Trump’s phones occurred.

As is often the case on the right with its pyramidal rumor-mills, Breitbart sourced itself on the wiretapping allegations to a National Review article that never states that any warrant to wiretap Trump himself ever issued. In fact, the National Review article appears to acknowledge that Trump himself was not the subject of wiretapping.

So, where does that leave us? We have this key statement in the Breitbart article: “No evidence is found — but the wiretaps continue, ostensibly for national security reasons, Andrew McCarthy at National Review later notes. The Obama administration is now monitoring an opposing presidential campaign using the high-tech surveillance powers of the federal intelligence services.”

Except that McCarthy never says the “monitoring” began or continued by wiretap of Trump. He does not even assert that wiretaps of Trump occurred at any point in time. At best, Breitbart negligently misread the NR article. At worst, Breitbart knowingly misrepresented it.

Is that enough to win a defamation lawsuit? Unknown.

Is it enough to have a serious discussion with a defamation specialist?

Mr. Obama, make that call.

Can you help us out?

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