Let’s all just be honest with each other: Donald Trump is probably going to be impeached.
I said as much a little over a week after the President’s inauguration when protests broke out at airports nationwide following a bungled attempt to make good on the whole Muslim ban campaign promise (aside: it’s exceptionally surreal that we’re even using the phrase “Muslim ban” and “campaign promise” in the same sentence).
Since then, it’s been one disaster after another. The evidence of Russian collusion just keeps piling up (Flynn, Sessions, Kushner) and Trump just keeps pulling a Spinal Tap with the crazy:
White House: If you can see, the crazy knobs all go to 11. Right across the board. 11, 11, 11…
America: Oh, I see, and most administrations’ crazy only goes up to 10.
White House: Exactly.
America: Does that mean it’s crazier? Is it any crazier?
White House: Well, it’s one crazier, isn’t it?
I want you to think for a second about the progression of crazy that we all watched unfold in real time last weekend, because I think the craziest thing about the whole ordeal hasn’t received nearly enough attention.
So obviously it’s batsh*t crazy that Trump was up before dawn on a Saturday tweeting about how he’s now convinced that Barack Obama tapped the phones at Trump Tower.
It’s even more batsh*t crazy that those allegations turned out to based on a Breitbart article.
It’s even more batsh*t crazy that the Breitbart article was itself based on a right wing radio rant.
So let’s just call that “crazy cubed.”
Here’s the Cliffs Notes version via the NY Times (“fake news!”):
It began at 6 p.m. Thursday as a conspiratorial rant on conservative talk radio: President Barack Obama had used the “instrumentalities of the federal government” to wiretap the Republican seeking to succeed him. This “is the big scandal,” Mark Levin, the host, told his listeners.
By Friday morning, the unsubstantiated allegation had been picked up by Breitbart News, the site once headed by President Trump’s chief strategist, Stephen K. Bannon. Less than 24 hours later, the president embraced the conspiracy in a series of Twitter posts accusing his predecessor of spying on him, setting in motion the latest head-spinning, did-he-really-say-that furor of Mr. Trump’s six-week-old presidency.
But as I alluded to above, the craziest part of the whole thing was that Trump was apparently so oblivious to the gravity of what he had just told his 26.1 million Twitter followers, that he proceeded to jump straight from accusing his predecessor of orchestrating a vast criminal conspiracy to … insulting Arnold Schwarzenegger.
Arnold Schwarzenegger isn't voluntarily leaving the Apprentice, he was fired by his bad (pathetic) ratings, not by me. Sad end to great show
— Donald J. Trump (@realDonaldTrump) March 4, 2017
There was no transition. No segue tweet. Just “here’s my theory on what would be the biggest scandal in Presidential history, and by the way, Arnold Schwarzenegger is pathetic.”
It would be like walking up to someone in the middle of the street, blowing their brains out all over the sidewalk, and then turning to the stunned onlookers and saying “and by the way, fuck Harrison Ford.”
There is simply no way that this can be allowed to persist for four years. It’s barely been 40 days and Trump has already i) tried to cram an unconstitutional immigration order through, ii) suggested that the judiciary is indirectly promoting terrorism by striking down said Executive Order, iii) fired the interim Attorney General, iv) seen his new Attorney General recuse himself from an investigation into Trump’s ties to Moscow after being accused of perjury for lying about contact with the Russian ambassador, v) fired his National Security Advisor for lying to the Vice President about discussions with Russians, vi) branded the press the enemy of the American people, vii) put a known white supremacist on the National Security Council, and viii) accused a former President of wiretapping a golden monument with Trump’s name on the front of it.
With all of that in mind, consider the following from Noah Feldman, a professor of constitutional and international law at Harvard and a former clerk to U.S. Supreme Court Justice David Souter.
The sitting president has accused 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.
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.
Oh, and should you want to place a bet on this or if you otherwise care what the bookies think…