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 [redacted] 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 [redacted]’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 [redacted] 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 [redacted] could have said he was making a political argument rather than an allegation of fact.
But when President [redacted] 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.
– Noah Feldman, [redacted]’s wiretap tweets raise his risk of impeachment. Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”
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