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.