Obama v. Trump

The tabloids enjoyed a field day with the news following the long, Memorial Day weekend. They ran full page headlines proclaiming “Honeymoon Truly Over: The Ex Strikes Back” and “The War We Wanted: Obama v. Trump.” Finally, it seemed, the former President found his anger and decided to confront his successor’s open scorn for truth and facts, and sued Mr. Trump for defamation per se.

Until that day, President Obama patiently brushed off Mr. Trump’s comments as one man’s expressions of his political opinion. President Obama endured Mr. Trump’s bizarre birther attacks and responded with humor. He recognized that Mr. Trump’s rants against him — calling President Obama “weak,” “a disaster” and “the worst president maybe in the history of our country” — fell within the scope of campaign rhetoric. He even dished it back in style. Mr. Trump, however, could not help himself and, seeking to distract, crossed a line. In March, #45 accused President Obama of criminal and unconstitutional actions. Mr. Trump’s brazen disregard for the truth and desire to promote any conspiracy theory he hears, apparently, inspired President Obama to take a stand, seek to restore an appreciation for the truth and, perhaps, reestablish the integrity of the Office he had recently vacated.

Obviously, President Obama has not commenced this law suit and, in all likelihood, he will decline to do so. For decades, retired Presidents have observed the unwritten custom of avoiding direct criticism of their successor or immediately commenting on or interfering in the nation’s operations. The orderly transfer of power, a hallmark of our Republic, justifies and, generally, dictates this approach. The enormity of the Office and the complexities of the issues at hand prompt everyone leaving the White House to remove any potential conflict arising from divided loyalties.

But Mr. Trump has changed all the rules. President Obama should meet him head-on, overlook precedent the way Mr. Trump has and commence a defamation lawsuit to force Mr. Trump to accept some responsibility for his words. The first hundred-plus days of the new administration have witnessed a relentless, exhausting and profoundly disturbing attack on the truth. From misrepresenting the popular vote results of the election to challenging multiple news stories within the “fake” media, Mr. Trump has demonstrated a wanton, if not surreal, disregard for facts and the truth. A lawsuit that directly attacks knowingly false statements may offer the nation its only chance to restore honesty and integrity within the White House.

Mr. Trump’s four, pre-breakfast tweets on March 4, charging President Obama with tapping the Trump Tower phones offer President Obama the opportunity to sue his successor for defamation per se. Broadly speaking, defamation requires (a) a false statement, (b) published without authorization to a third party, and (c) either cause special harm or constituted defamation per se. In relevant part, injury is presumed under defamation per se if the statement alleges the commission of a crime or injures the reputation of the plaintiff in his profession. Further, in the case of a public figure, the plaintiff must demonstrate that defendant knows the statement is false or recklessly disregarded the truth of the comment.

Individuals challenged the veracity of the four tweets within hours of their original publication. Former Director of National Intelligence James Clapper denied the following day that the government wire-tapped either Mr. Trump or his campaign last fall. FBI Director Comey has represented under oath to a Congressional Committee that he has “no information” that supports Mr. Trump’s claims that his predecessor ordered surveillance of Trump Tower during the election campaign. President Obama and members of his former staff have all denounced Mr. Trump’s statements as false. At this point, no one has disclosed any information publicly that supports Mr. Trump’s assertions.

Mr. Trump’s role in publishing these comments appears beyond contest. He sent out the initial four tweets on March 4, and over 26 million individuals across the nation and around the world received the messages. Mr. Trump has subsequently reaffirmed his opinion in interviews with the media, resulting in the defamation qualifying as both libel and slander.

The original tweets qualify as defamation per se as they accuse the former President of a crime and injure his professional reputation. The four tweets expressly accuse the former President of tapping Mr. Trump’s telephones in Trump Tower in October 2016. Further, Mr. Trump implied that President Obama undertook this action without judicial approval, alleging that the FISA Court had already denied an earlier application. These allegations, collectively, accuse the former President of a serious felony, which Mr. Trump characterized as “McCarthyism” and “Nixon/Watergate.”

Finally, Mr. Trump has demonstrated a reckless disregard for the truth of his comments. He had not demonstrated or offered any evidence supporting his charges. Further, he possessed the authority to confirm, at least potentially, the accuracy of any feared covert surveillance. As the President, Mr. Trump could have simply telephoned the FBI Director or requested the production of a list of all FISA warrants as of last October and November. He, however, ignored any and every opportunity to assess the validity of his charges before publishing them.


The original tweets qualify as defamation per se as they accuse the
former President of a crime and injure his professional reputation.


Mr. Trump cannot hide behind the nation’s seal and escape the consequences of his statements. The Supreme Court observed in 1882, that “No man in this country is so high that he is above the law.” In Clinton v. Jones and Nixon v. Fitzgerald, the Court explained the President’s broad responsibilities extend the immunity from damages to the “outer perimeter of his authority,” but reaffirmed that a President is not immune for acts outside of official duties. Absolute or presidential immunity only applies to actions taken within the scope of his office.

The defendant would offer an immediate attack on the suit. The Attorney General, almost certainly, would invoke the Federal Torts Claim Act and his role therein. He would certify that Mr. Trump was acting within the scope of his office and then move to dismiss the case pursuant to 28 U.S.C. § 2680(h). That certification, however, in all likelihood, would not withstand scrutiny. President Obama’s complaint would specify the circumstances surrounding the four tweets, which confirm that the publication occurred outside the scope of that office. While the President of the United States has an official Twitter account, Mr. Trump published his four charges on his private Twitter account. Mr. Trump has possessed that account since March 2009, and posted over 34,000 tweets on his account. Further, Mr. Trump issued his tweets while on vacation in what he views as his “second home.” The tweets also pertain to last year’s presidential election and have nothing to do with any daily issue of the presidency.

The subsequent discovery period would offer a rare opportunity for the former President, or his counsel, to instruct the new President in the importance of honest representations. The deposition of Mr. Trump would prove the highlight of the litigation because the issues in the case would make every past false or unsubstantiated comment relevant to the litigation. Under oath, Mr. Trump would face one of three possible outcomes. First, he could acknowledge that he frequently makes statements without factual support and, indeed, knowingly misrepresents facts. Second, he could dig in and dispute factual questions placed before him, continue to lie and face potential impeachment on perjury grounds. Third, he could stick with his misstatements but testify over and over again to his sincere belief in the accuracy of those comments. Such a separation of the Chief Executive from reality, however, would call into direct question his decision-making process and, accordingly, should prompt his Cabinet to remove him under Section 4 of the 25th Amendment.

Given the wide scope of disclosures and discoveries concerning the Trump 2016 campaign, these tweets have largely disappeared into the background and people have forgotten them. Indeed, the revelations of April and May, the firing of the FBI Director, the discussion of classified information with the Russian ambassador and the appointment of special counsel have made the wiretap tweets seem dated. Yet, those tweets perfectly capture Mr. Trump’s open disregard for facts and reality. To challenge directly challenge the veracity of those pronouncements would permit President Obama to take a stand for facts and honest discussion and emphasize the importance of truth.

Mr. Trump was correct in tweeting, “a good lawyer could make a great case out of [these] fact[s] ….” President Obama has the opportunity to defend his honor and, just as importantly, reestablish the importance of truth and the law in our country. He should seize that opportunity.

Wholly Inappropriate Questions

Rep. Gohmert has embarrassed himself several times at the expense of his Texas constituents. He denies human impact on the climate and drew an analogy between his position and the Catholic Church’s prosecution of Galileo. He has placed some of the blame of the Benghazi attack on Sen. John McCain and showed off a flow chart that remains the envy of every conspiracy theorist wearing a tin foil hat. His performance this week, however, established a new personal low as he channeled the late Sen. Joe McCarthy.

FBI Director Christopher Wray appeared before the House Judiciary Committee on Thursday, December 7, and the hearing must have struck him as odd. Many of the Republican members of the committee, members of the party better known for pushing law and order issues, utilized their time to attack the FBI. The challenges ranged from the actions of agent Peter Strzok on special counsel Mueller’s investigation to the need for investigations of Sec. Clinton to the FBI’s authority to conduct Section 702 surveillance.

The vast majority of these partisan attacks arise from efforts to discredit Robert Mueller’s ongoing investigation. The public should expect these attacks to increase over the next few months if it appears that the investigation is getting closer to finding grounds for an indictment against Mr. Trump or members of his family. As Rep. Nadler observed to Director Wray: “I predict that these attacks on the FBI will grow louder and more brazen as the special counsel does his work and the walls close in around the president, …. Your job requires you to have the courage in these circumstances to stand up to the president.’’

Rep. Gohmert’s questions distinguished themselves during the hearing. Rep. Gohmert directly confronted the Director about the loyalty of his staff, asking about those members of the FBI with “political bias against” Mr. Trump. After opening his time with an unsubstantiated attack on Mueller’s time as the FBI Director, Rep. Gohmert’s asked Director Wray directly whether a series of individuals, each of whom he identified individually by name, had been witnessed “openly speaking against this administration.” See clip starting at 2:56. These questions pushed FBI Director Wray into a defense of individual, while challenging the underlying premise of Re. Gohmert’s questions.

As a matter of leadership, Director Wray should have told the Representative from Texas that he would not answer such questions. As a practical matter, little separates these questions from Sen. McCarthy inquiring whether certain individuals were communists. The questions improperly and without foundation sought to attack the integrity of individuals. The questions were particularly infuriating as they came from an individual of questionable intelligence and integrity who offered them solely for a political purpose.

Nothing necessitates or required the Director to answer fundamentally inane questions about the entire breadth of comments that any individual has made. Further, a negative comment about an individual who accused the FBI of “roll[ing] over,” botched the firing of Director Comey, labeled the FBI’s moral as low, stated that the FBI’s reputation is in tatters and otherwise conducts a relentless attack on law enforcement and intelligence groups not doing exactly what he desires would prompt most people to respond with something less than full enthusiasm. Disagreement with an individual or his policies does not render an individual bias, unfaithful to the laws and Constitution or unable to perform his or her job.

Rep. Gohmert owes an apology to each individual he mentioned during his inquiry.

 

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The Role of Elective, Representative Government

Members of the United States government have sunk to new lows in the past 48 hours. Mr. Trump utilized a racist moniker to denigrate a member of the U.S. Senate during a White House ceremony to honor Navajo code talkers.  The following day, he retweeted three anti-Muslim posts from a British bigoted splinter group.  When the press challenged the Press Secretary about the tweets, pointing out the inaccurate aspects of some of the videos, Ms. Sanders responded that the truth of the video is immaterial to the importance of the issue.

Meanwhile, the GOP has promoted a travesty tax bill because they need some achievement to highlight for their supporters after a year of full control.  Lawmakers are ignoring the impact on the national debt, $1.4 trillion increase, the impact on health care and the impact on various small issues, such as the sudden taxation on college endowments.  Far more distressing, the abject lying from the White House and GOP leadership about the benefits of the bill and the pure fiction doled out that this bill will create a sudden economic boom.  All of this is done as the White House insults opposition leadership to the point that Democrats walk away and refuse to show up for a meeting with the President.

In other news, the man leading in the polls for the U.S. Senate seat from Alabama has been fired from his job twice and had a thing for under-aged girls; allegations of sexual harassment have come to light involving members of both the House and Senate; and administration officials are gutting agencies critical to the health, safety and security of the nation.

The appropriate responses to these actions is not throwing up one’s hands and muttering a plague on both houses.  Initially, these immediate events, coupled with all of the prior events of the past year, necessitate a reminder of the role of representatives in a republic.

Edmund Burke’s speech to the electors of Bristol, made just after they had elected him to Parliament in 1774, remains one of the finest expressions of the role of an elective official.  Burke agreed that a representative should hold his constituent’s views in the highest regards and he should give their wishes the greatest weight. Burke, however, rejected the idea that an official should simply adhere and act on the opinions of his constituents.  As he explained:

But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any sett of men living. These he does not derive from your pleasure; no, nor from the Law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your Representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.

This aspect of Burke’s speech is well known, but he expanded on it and there, he provided a message that bears careful consideration today.

First, Burke pointed out that governance is not merely a matter of acting on the will of the people. Instead, “Government and Legislation are matters of reason and judgement, and not of inclination ….”  Second, Burke reemphasize the importance of the representative acting in a manner consistent with his judgment and conscience. For him, to fail to do so “would be utterly unknown to the laws of the land” and constitute a fundamental mistake.  Third, and finally, Burke considered the nature of the government and for whom the representative was working. Burke concluded:

Parliament is not a Congress of Ambassadors from different and hostile interests; which interests each must maintain, as an Agent and Advocate, against other Agents and Advocates; but Parliament is a deliberative Assembly of one Nation, with one Interest, that of the whole; where, not local Purposes, not local Prejudices ought to guide, but the general Good, resulting from the general Reason of the whole. You chuse a Member indeed; but when you have chosen him, he is not Member of Bristol, but he is a Member of Parliament. If the local Constituent should have an Interest, or should form an hasty Opinion, evidently opposite to the real good of the rest of the Community, the Member for that place ought to be as far, as any other, from any endeavour to give it Effect.

Burke viewed the Constitutional government as an intricate and delicate machine requiring the balancing of broad and varying interests that must be balanced if it at all possible.

Burke’s letter identifies the best and, in truth, ideal character for our members of Congress.  The goals and considerations laid out in the speech to Bristol defines the standard that we should demand for our officials in local, state and federal government. Now, we need to remind our representatives that we expect them to serve in a deliberative body, where they exercise their reason and judgment in order to benefit the entire nation, not merely some small portion of it. Doing so, may help to restore government to what it should be.

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Respecting the Press

 

The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.

 

Thomas Jefferson’s observation from 1787, has always stood out for me as a personal favorite. Jefferson, obviously, did not view the issue as a binary proposition for he understood that absent a government, we would lack a civil society. Instead, the comment highlighted the importance and priority that Jefferson placed on the Fourth Estate. Understandably, journalists and political writers frequently utilize the sentence in their defense of a free press.

The quotation, however, does not end there and writers frequently omit the subsequent sentence from Jefferson’s letter to Edward Carrington. Jefferson continued, “But I should mean that every man should receive those papers and be capable of reading them.” For Jefferson, the priority of newspapers is directly connected with the broad availability of that information to all and, just as importantly, everyone is capable of reading and, implicitly, understanding that information. This second sentence is important because the ability to critically read information is slowly evaporating for many.

We have achieved the first half of that second sentence. Satellites and cable lines make the news immediately available to everyone across the nation. We have entered an age where an individual sitting on a front porch in Vermont can read about a robbery in San Diego or a woman celebrating her 100th birthday in Arizona. A natural disaster half a world away is broadcast in nearly real time with experts and pundits explaining the consequences as you watch and a Japanese businessman sitting in Paris can start or end his day reading the Asahi Shimbun.

A significant percentage of the U.S. public, however, remains unwilling, unable or incapable of assessing the information before it. Perhaps because it arrives to individuals over the same data stream, people fail to assess or weigh the merit or quality of the information before them. People equate individual blogs to The Chicago Tribune or NPR. Someone driving home listening to Mark Levin on the radio believes that they are equally as informed as someone who read The New York Times over lunch.

News sources are not equal. The New York Times, Wall Street Journal and Washington Post offer both the best journalists and leading opinion writers in the country. If you wish to see the best that U.S. journalism has to offer, these are the places to look. Conversely, many turn to entertainers for their news. Sean Hannity freely acknowledges that he is not a journalist and that he brings a specific bias to his shows (and, Rachel Maddow offers the flip side of Hannity). While talk show hosts and programs will offer viewers and listeners some information, the top newspapers and some news programs are the place to go for obtaining quality information and analysis.

Inexplicably, many reject the best in the business and rest their opinions on the views of the unqualified. From Gov. Palin’s attacks on the “lame stream media” to Trump’s denouncement of the Times, and others, as “fake news,” people have rejected informed, accurate representations for palatable propaganda. In our assessment of information, a significant portion of the population has taken to rejecting the medical advice of the Johns Hopkin’s trained doctor and, instead, stand devoted to the snake oil sold to them and view the con man better qualified than the doctor to identify and address their ills.

No rational explanation exists for this rejection of the better qualified individuals and embrace of the lesser informed. While the information is now readily available to all, in Jefferson’s words, many are proving incapable of reading them.

An example may serve to illustrate the point. A former neighbor frequently posts pieces from Breitbart, the Washington Examiner, Frontpagemag.com, Dailycaller, Fox or other a wide variety of hack sites to denounce the evils of the world, the threat of immigrants to the nation, the horrors of leftists, the risk of an Islamic attack, the intrusion of Sharia law in the United States and a variety of other problems. More frequently than not, these pieces are little more than click-bait chum and either the lead paragraph itself or the next few paragraphs contain assertions that are factually inaccurate or take a statement significantly out of context. Given my own preference for accuracy, I will frequently respond to these pieces with an explanation as to why the central thrust of the piece is false or the assertion unfounded.

At the start of the year, this individual attempted to reverse the process.

At the end of January, Nicholas Kristof published an op-ed piece in the New York Times discussing the nation’s past history of over reacting to immigrants, how the new President’s travel ban might bar entry to individuals who had served the country and how the ban might have impacted his own family and I shared the column on Facebook. About fifteen minutes later, a comment appeared from the neighbor accusing Kristof of lying and offering the column as another example of the lying media.

So what her complaint?

The neighbor challenged a single clause out of long op ed piece related to the travel ban. From the sentence, “We make bad decisions when we fear immigrants we “otherize.” That’s why Americans burned Irish Catholics alive, banned Chinese for decades, denied visas to Anne Frank’s family and interned Japanese-Americans. And yes, The New York Times sometimes participated in such madness,” she labeled the charge that Americans burned Irish Catholics an ugly lie. I asked her if she had any proof for her charge, and received no direct response. After repeated assertions of falsification, I directed her to contact Kristof directly. I repeated the direction the following day. Her only response was to denounce the lying media.

Two days later, I received a demonstration of the distinction between credible, first-class journalism and third-rate manipulative hacks. On January 30, I e-mailed Kristof at the Times, identified the specific clause in question and asked for the source of the statement. The following day, I received a response that provided a link to an 1857 book that referenced such attacks happening in Philadelphia in 1844. Yes, the man who has received Pulitzer Prizes for both international reporting and commentary offers reliable information which one can confirm as accurate.

While President Reagan famously adopted the Russian proverb “trust, but verify,” and although we should all adopt this approach to all of the information we read, their track records repeatedly demonstrate that The New York Times, Wall Street Journal and Washington Post are worthy and deserving of that trust. Few others merit the same respect.

 

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