[Vision2020] Trump can be impeached for his charge about Obama Wire Tapping

[Nicholas Gier]

www.bloomberg.com/view/articles/2017-03-06/trump-s-wiretap-tweets-raise-risk-of-impeachment

*Trump's Wiretap Tweets Raise Risk of Impeachment*

MARCH 6, 2017 1:42 PM EST

By Noah Feldman
<https://www.bloomberg.com/view/contributors/AFZ_b1F72Xw/noah-feldman>

The sitting president has accused
<https://www.bloomberg.com/politics/articles/2017-03-04/trump-calls-obama-sick-claims-trump-tower-was-wiretapped>
his
predecessor of an act that could have gotten the past president impeached.
That’s not your ordinary exercise of free speech. If the accusation were
true, and President Barack Obama ordered a warrantless wiretap of Donald
Trump during the campaign, the scandal would be of Watergate-level
proportions.

But if the allegation is not true and is unsupported by evidence, that too
should be a scandal on a major scale. This is the kind of accusation that,
taken as part of a broader course of conduct, could get the current
president impeached. We shouldn’t care that the allegation was made early
on a Saturday morning on Twitter.

The basic premise of the First Amendment is that truth should defeat her
opposite number. “Let her and Falsehood grapple,” wrote the poet and
politician John Milton, “who ever knew Truth put to the worse in a free and
open encounter?”

But this rather optimistic adage only accounts for speech and debate
between citizens. It doesn’t apply to accusations made by the government.
Those are something altogether different.

In a rule of law society, government allegations of criminal activity must
be followed by proof and prosecution. If not, the government is ruling by
innuendo.

Shadowy dictatorships can do that because there is no need for proof.
Democracies can’t.

Thus, an accusation by a president isn’t like an accusation leveled by one
private citizen against another. It’s about more than factual truth or
carelessness.

The government’s special responsibility has two bases. One is that you
can’t sue the government for false and defamatory speech. If I accused
Obama of wiretapping my phone, he could sue me for libel. If my statement
was knowingly false, I’d have to pay up. On the other hand, if the
president makes the same statement, he can’t be sued in his official
capacity. And a private libel suit mostly likely wouldn’t go anywhere
against a sitting president -- for good reason
<https://www.bloomberg.com/view/articles/2016-11-11/supreme-court-never-imagined-a-litigant-like-president-trump>,
because the president shouldn’t be encumbered by lawsuits while in office.

The second reason the government has to be careful about making unprovable
allegations is that its bully pulpit is greater than any other. True, as an
ex-president, Obama can defend himself publicly and has plenty of access to
the news media. But even he doesn’t have the audience that Trump now has.
And essentially any other citizen would have far less capacity to mount a
defense than Obama.

For these reasons, it’s a mistake to say simply that Trump’s accusation
against Obama is protected by the First Amendment.

False and defamatory speech isn’t protected by the First Amendment.

And an allegation of potentially criminal misconduct made without evidence
is itself a form of serious misconduct by the government official who makes
it.

When candidate Trump said Hillary Clinton was a criminal who belonged in
prison, he was exposing himself to a libel suit. And the suit might not
have succeeded, because Trump could have said he was making a political
argument rather than an allegation of fact.

But when President Trump accuses Obama of an act that would have been
impeachable and possibly criminal, that’s something much more serious than
libel. If it isn’t true or provable, it’s misconduct by the highest
official of the executive branch.

How is such misconduct by an official to be addressed? There’s a common-law
tort of malicious prosecution, but that probably doesn’t apply when the
government official has no intention to prosecute.

The answer is that the constitutional remedy for presidential misconduct is
impeachment.

That would have been the correct remedy if Obama had “ordered” a wiretap of
the Republican presidential candidate’s phones. The president has no such
legal authority. Only a court can order a domestic wiretap, and that only
after a showing of probable cause by the Department of Justice and the
Federal Bureau of Investigation.

Breaking the law by tapping Trump’s phones would have been an abuse of
executive power that implicated the democratic process itself. Impeachment
is the remedy for such a serious abuse of the executive office.

That includes abuse of office in the form of serious accusations against
political opponents if they turn out to be false and made without evidence.
These, too, deform the democratic process.

The Constitution speaks of impeachment for “high crimes and misdemeanors.”
A lot of ink has been spilled over these words, which date back at least to
impeachment proceedings
<http://www.brepolsonline.net/doi/abs/10.1484/J.MSS.3.1152> in the 14th
century. This isn’t the place for a detailed analysis.

Suffice it to say that what makes crimes “high” is that they pertain to the
exercise of government office. That’s exactly what accusations by the
executive are: actions that take on their distinctive meaning because they
are made by government officials.

What’s more, government acts that distort and undercut the democratic
process are especially serious and worthy of impeachment. The Watergate
break-in to the Democratic National Committee headquarters was part of an
effort to steal the 1972 election. A wiretap of Trump’s campaign would’ve
had political implications.

And accusing the past Democratic president of an impeachable offense is
every bit as harmful to democracy, assuming it isn’t true. Obama is the
best-known and most popular Democrat in the country. The effect of
attacking him isn’t just to weaken him personally, but to weaken the
political opposition to Trump’s administration.

Given how great the executive’s power is, accusations by the president
can’t be treated asymmetrically. If the alleged action would be impeachable
if true, so must be the allegation if false. Anything else would give the
president the power to distort democracy by calling his opponents criminals
without ever having to prove it.

-- 

A society grows great when old men plant trees whose shade they know they
shall never sit in.

-Greek proverb

“Enlightenment is man’s emergence from his self-imposed immaturity.
Immaturity is the inability to use one’s understanding without guidance
from another. This immaturity is self- imposed when its cause lies not in
lack of understanding, but in lack of resolve and courage to use it without
guidance from another. Sapere Aude! ‘Have courage to use your own
understand-ing!—that is the motto of enlightenment.

--Immanuel Kant
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