MSNBC’s Phil McCausland, Ari Melber, and Diana Marinaccio asked an important question about President Trump’s unfounded claims that then-President Obama wire-tapped Trump Tower: Does Obama have grounds to sue Trump for Libel?
The answer is fascinating.
The trio calls the accusation Trump has levied “watergate-level,” and has flat out said – unequivocally – that Obama was behind a sinister wire-tap aimed at the Trump Team. And while Trump may have likely tweeted his latest tirade just trying to deflect a little bit of the Russian-scandal attention away from him, it could actually turn out to create a much more serious legal problem.
And it could drag his presidency into a dark realm of powerlessness…
MSNBC points out that there is a great deal of leeway regarding political speech in all its forms, but by launching these serious accusations as fact, calling him “bad (or sick) guy,” and doing so without any kind of evidence whatsoever, he could land himself in some seriously hot water. Here are Trump’s original tweets:
Fordham University Law Professor Benjamin Zipursky shared his thoughts on the matter to MSNBC, “He’s basically stating that Mr. Obama committed crimes, and to state that somebody has committed a crime when it’s false is clearly defamatory. The question is: Is there enough evidence of serious reckless disregard to send that case to a jury? I don’t know what a court would decide on that, but there is some evidence of recklessness.”
The Supreme Court has set the bar high for libel:
- Was the statement false?
- Did the person know it was false or was he or she reckless about whether it was false?
These are difficult to definitively prove. And yet it is possible that there is proof. MSNBC points out that that task is perhaps growing easier as more people speak out against Trump’s evidence-less claims. FBI Director, James Comey, has asked the Justice Department to “publicly reject” Trump’s accusations, and the former Director of National Intelligence, James Clapper, said that Trump’s claims were “unequivocally false.” Add to that the fact that a senior US official made it clear that Trump tweeted the accusations without first consulting with anyone in any government capacity. This throws fuel to the fire, because it would show the President is more interested in slandering Obama than he is with fact-checking.
MSNBC concludes its study explaining the conundrum and the possibilities: “Despite the possible case, it is unlikely that Obama would sue Trump for libel. Predecessors tend to give the succeeding president a fair amount of room, and the president is provided some protections from civil suits. The Supreme Court’s 1982 decision Nixon v. Fitzgerald found that a president is provided absolute immunity from civil damages and liability while conducting presidential acts. ‘President Trump has official immunity from liability and damages,’ Zipursky confirmed, but it is not clear that judges would view tweeting a defamatory conspiracy theory, without evidence, as a president carrying out his official duties.”