Trump’s “Obama Wiretapped Me” Claim: Can it Pass Legal Scrutiny — Doubtful

Can You Hear Me Now???

Did Obama Wiretap Trump???

(Legally or Otherwise)

Results So Far

Introduction to Trump 's Wiretapping Claim Against Obama. This is perhaps the biggest conspiracy theory in American political history and classic Trump:

#1:  “Trump basically stated that 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,” says Benjamin Zipursky, professor of defamation law at Fordham University.

#2:  What the plaintiff has to show is that the defendant has said, written, or tweeted something that is a false statement of fact that harms the reputation of the defendant. Since Mr. Obama is a public official, it has to be shown that it was done with some sort of intent to harm. “I think the plaintiff would claim that it's untrue and the burden would be on Trump, the defendant, to prove truth,” says Jay Wexler, professor of constitutional law at Boston University Law School.

Basics (sort of): It's difficult for public figures to win libel cases. Most courts rule against them because the assumption is that they have chosen to make their lives an open book, which means people will talk about them.

Despite a possible case, it is unlikely that Mr. Obama would sue Mr. Trump for libel about the false wiretap statements. 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.

Case Summary: Ernest Fitzgerald claimed that he lost his employment as a management analyst with the Air Force because he had 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. Fitzgerald claimed discrimination and no due process.  He tried to add President Nixon as a defendant in his suit, but Nixon argued that a President cannot be sued for actions taken while in office. The trial and appellate court rejected the President's claim of immunity, and the case went to the Supreme Court.

The USSC Court Decision: In a 5-4 decision, the Supreme Court ruled that the President is entitled to absolute immunity from liability for damages based on his official acts.

President Trump has official immunity from liability and damage but it is not clear that judges would view tweeting a defamatory conspiracy theory, without evidence, as a president carrying out his official duties.

But past Supreme Court cases have created a basic standard that seeks to answer two legal questions: (1) Was the statement false; (2) did the person know the statement was false, or was he/she reckless about whether it was false?

The answer to both questions must be yes, and that could be a difficult conclusion to draw.

Related: What Does It Take to Get a Legal Wiretap?

Despite that high threshold, a fair amount of evidence is beginning to build that Trump might have crossed the legal line. Examples:

1.  A senior official told NBC News that FBI Director James Comey asked the Justice Department over the weekend to publicly reject Trump's claims because they were untrue.

2.  A spokesman for Obama said Sunday that Trump's tweets were “unequivocally false.”

3.  Former DNI James Clapper, flatly denied any wiretap of Trump Tower on NBC's “Meet the Press.”
4.  In addition, it seems that Trump did not try to ask his own administration whether the scenario was true. A senior U.S. official in a position to know told NBC News that Trump “did not consult with the people inside the U.S. government who might know before making this claim.”

5.  As the evidence that Trump's charge is false piles on top of the proof that he did not try to fact-check it, other legal experts say he is treading on troubling ground.

Now, the White House is calling for a congressional investigation into illegal wiretapping of the Trump campaign, 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.”  

What is truly amazing is that Trump himself has threatened lawsuits against many people and publications for many reasons since he entered the public eye, but he has only brought seven cases to court, according to USA Today. Of those seven, he won only one.

Stay tuned and thanks for stopping. We need a quick and absolute final resolution to this wild-ass conspiracy claim by Trump, et al. But, even with that in some Trump-like wackadoodle minds, he and they would not drop it. It's not in his DNA. 

The question is: What the hell comes next?