An idea first put forward by Mark Levin, carried onward by Breitbart and others, eventually reaching its apex thanks to Trump might prove legally problematic to the new president.
Thanks to how the claims that Obama wiretapped Trump Tower originated and how Trump handled them, the president might be guilty of libel.
On Saturday, after reading a Breitbart article on the wiretap, Trump tweeted out how Obama had wiretapped his phones at Trump Tower in October during the presidential race. In the tweets, Trump compared Obama’s wiretapping to Nixon and Watergate, and McCarthyism.
Although Levin and Limbaugh’s claims are dubious at best, Trump added to them. Neither Limbaugh nor Levin specified when the wiretaps took place. How he levied these accusations against Obama brings up questions as to whether it is libel or not.
For starters, Trump has failed to provide any evidence. Both Limbaugh and Levin claimed to have connected the dots on the story. They did not provide any original reporting.
Secondly, Trump did not consult his staff before tweeting off these accusations. On Sunday, his staff said they need an inquiry to see if what he said was true. White House Press Secretary Sean Spicer said, “President Donald J. Trump is requesting that as part of their investigation into Russian activity, the congressional intelligence committees exercise their oversight authority to determine whether executive branch investigative powers were abused in 2016,” When asked if Foreign Surveillance Court documentation could be used as proof, Spicer could not even say whether such documentation exists on Trump.
A serious part of libel law is whether the accused knew it was false, or showed recklessness for the truth. The fact that Trump did not consult his team before tweeting off these accusations shows a level of recklessness.
Thirdly, Trump accused Obama of a crime, which if false is considered automatically harmful to the victim’s reputation. If proven false – and there’s little to nothing proving he’s right – Trump’s claims would be considered libel regardless of whether he meant to slander or not.
Benjamin Zipersky, a defamation law professor at Fordham University Law School in New York said on 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.”
Numerous government officials and figures have come out denying Obama ever wiretapped Trump Tower. Former director of National Intelligence, James Clapper, flatly denied the claim. An Obama spokesman called the accusation “simply false.” CNN’s Jake Tapper tweeted Sunday that although many journalists are “digging on this,” every US intel person is denying it happened.
The Obama administration did investigate Russian involvement in the US election, but a former senior US official with direct knowledge of the investigation said Trump’s phones were never tapped. The Obama spokesman added that the Obama administration had a rule to never interfere in DOJ led investigations.
There’s also the issue that Obama would have had to get the wiretap approved by FISA. No proof exists that he tried to get it approved through the intel court. Former Obama deputy national security adviser Ben Rhodes tweeted Saturday morning in a response to Trump that no president can order a wiretap thanks to restrictions.
The lack of evidence behind Trump’s claims coupled with his apparent disregard for checking to see if the facts even existed before tweeting it out create a possible libel case. This is not to say that Obama would ever bring Trump to court over the comments. Former presidents usually give the new president grace for incidents like this. Presidents also have immunity from damages and liability, although it is unknown whether a court would see Trump’s tweeting of unfounded conspiracy theories as a part of his official duties.
The possibility of whether Trump committed libel is more enlightening of Trump’s sometimes rash decision-making. He might be frustrated over the continuous allegations of connections between him and his cabinet with Russia, but that is no excuse for tweeting out unproven charges.
John-Pierre Maeli is a freelance writer, managing editor for Refined Right, and friendly neighborhood fashion icon living in the DC area. Follow him on Twitter.