Random Politics & Religion #21

Show the law.

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, 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.

What do you mean, "keep coming up?"
That's been my schtick for like a decade.

What do you mean, "keep coming up?"
That's been my schtick for like a decade.

Good, your nickname is now The Schtick™

I'll do some digging to find it, but here's an article for the time being.

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

Won't hold water due to all the slander and libel Obama committed against Bush.

Just another example of Trump doing what Obama did before.

i can't believe you just quoted yu-gi-oh

Genuinely asking, can you give me some examples of this libel and slander Obama committed against Bush? I can't imagine it's anything remotely as severe as Trump's accusation that Obama wiretapped and spied on him Nixon-style.

Not that I think he will, should, or even could be impeached for it.

purity of fire

Got a good laugh at example 8 "Obama blames Bush for Fast and Furious"... like if Obama blamed the entire film franchise and Vin Diesel's career on Bush.

I'll read through 'em during/after these basketball games, thanks for the thorough response.