Can Obama Sue Trump For Libel?

The Supreme Court has established two clear guidelines with respect to libel claims.
President Clinton counsels President Obama.
President Clinton counsels President Obama.

The short answer is yes, but he will likely remain silent.

The former president would stand on solid ground if he decided to file a libel suit against President Trump, however, that is very unlikely. As a member of an extremely exclusive brotherhood, a club that typically shies away from high-profile spats with its members, it is safe to assume that the ever classy “no drama” Obama would be apprehensive to break with tradition.

Past precedent aside, the former commander-in-chief is clearly preoccupied with other matters. Obama has been spotted on Broadway with his daughter, date nights with the former first lady, and the internet-breaking kite-surfing rendezvous on Richard Branson’s private island left many Americans envious of Obama’s well-deserved vacation. The last thing that seems to be on Obama’s radar is Donald Trump, but that doesn’t diminish the seriousness of the current president’s reckless accusation.

On Saturday, March 4, 2017, a frustrated President Trump turned to Twitter to vent after a seemingly endless string of bad press cycles following a well-received joint address to Congress. Allegations accusing Vice President Pence of the mishandling of official state business while governor of Indiana surfaced, as well as reports of newly confirmed Attorney General Jeff Sessions’ prior communication with Russian Ambassador Sergey Kislyak, after Sessions denied any interaction with Russia when asked during his confirmation hearing.

President Trump eventually responded to the unfavorable press with a haymaker ― proclaiming President Obama ordered Trump Towers to be wiretapped during the presidential election ― which caught journalists, White House staff, and America at-large completely off balance. Cabinet members and White House staffers alike continue to scramble to get on one accord, and it appears many in Trumpland have opted to punt all questions regarding the inexplicable Tweets.

Does Obama have a case?

Assuming Obama had the patience, and resources, to endure a lengthy legal battle, there is certainly a case to be made. According to Benjamin Zipursky, Law Professor at Fordham Law School, “to state that somebody has committed a crime when it’s false is clearly defamatory.” The issue, however, is proving that Trump knew his statement was false when he made the statement.

The Supreme Court has established two clear guidelines with respect to libel claims. The statement itself must be false, and the party making the statement must know the statement is false at the time the statement is made. Trump would presumably challenge the suit on the grounds of the second condition not being satisfied. He could argue that the intelligence presented to him suggested a link and broadly involved the previous administration.

The statement itself must be false, and the party making the statement must know the statement is false at the time the statement is made.

Oddly enough, at the time the tweets were made it appears President Trump was unaware of the longstanding federal laws preventing a sitting president from ordering a wiretap on a US citizen. With that said, there could have been a scenario that involved a surveillance operation ordered by Obama with the specific intent of monitoring a foreign subject to ensure national security. A conversation between the foreign subject and someone at Trump Tower could have been recorded. Under this pretense, the first condition ― the statement must be false ― would not be satisfied. While many Democrats may urge the former president to consider litigation, President Trump (with his team of seasoned attorneys) would likely have the case dismissed due to insufficient evidence.

President Obama may have grounds to sue, but he would probably prefer drinking a Mai Tai on the shores of Kailua Bay in Hawaii.

President Obama enjoying retirement.
President Obama enjoying retirement.
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