It was poet and politician John Milton who wrote on truth, “Let her and falsehood grapple.” So writes Noah Feldman, professor of constitutional law at Harvard, who reported for Bloomberg that the latest drama coming out of the White House — Donald Trump’s wiretapping tweets — might have created the grounds for impeachment.
Noah Feldman isn’t the only one arguing that Trump’s latest tweet storm could set the stage for articles of impeachment against the president. Laurence Tribe, one of America’s foremost constitutional law experts, also of Harvard Law, wrote similar thoughts on Twitter after Trump’s wiretapping tweets.
In Trump’s wiretapping tweets, the sitting president accused the former president, without evidence, of illegally wiretapping him at Trump Tower. Wiretapping anyone without a federal FISA warrant or consent is a felony and punishable by up to five years in prison, according to Cornell Law citing section 4 of 18 U.S. Code § 2511. It also would be considered a high crime and grounds for impeachment for President Obama if he engaged in that activity.
President Obama has flatly denounced the accusation.
Laurence Tribe of Tribe Law tweeted this weekend on the matter, writing, “Using his office to accuse the prior POTUS of an impeachable felony in reckless disregard of truth while implying security briefings gave him unique access to evidence confirming that accusation is a high crime that could properly form an Article of Impeachment.”
1/Using his office to accuse the prior POTUS of an impeachable felony in reckless disregard of truth while implying security briefings— Laurence Tribe (@tribelaw) March 7, 2017
Noah Feldman also argues for Bloomberg that tweets generally do fall under the purview of free speech. However, the First Amendment only protects the truth.
Bloomberg reports, “If the accusation were true, and President Obama ordered a warrant-less wiretap of Donald Trump during the campaign, the scandal would be of Watergate-level proportions.”
As Feldman writes, so is accusing the former president of a felony he did not commit. And according to the law, who makes the accusation is an important variable.
If an everyday American accused President Obama of felony wiretapping, it’s different and far less serious than if the government does. Government allegations are legally required to be followed by “proof and prosecution” and not by innuendo.
This goes far beyond a libel and defamation suit and far beyond First Amendment protections; the First Amendment does not provide freedoms for defamatory statements. Bloomberg reports that “an allegation of potentially criminal misconduct made without evidence is itself a form of serious misconduct by the government official who makes it.”
In this case, it would be misconduct enacted by the highest office in the land. There are only a few options in America to handle such misconduct. One is a tort for malicious prosecution, reports Bloomberg, and the other is impeachment.
So too would impeachment be appropriate if indeed President Obama did put a wiretap on Donald Trump without consent or federal FISA warrant, and that came out while he was in office. A warrant can only be obtained after a strong case of probable cause has been made to the secret FISA courts.
President Obama denies the illegal wiretapping of Donald Trump. However, it’s unknown if he had a legal order to wiretap Donald Trump or the Trump Tower.
High crimes are defined by the Constitution as crimes committed by the government. If the Trump campaign was wiretapped, this is very similar to the Nixon Watergate tapes, which were created illegally to win the 1972 election.
Thus, Bloomberg argues that if it is an impeachable offense to order the wiretaps, it is equally impeachable to falsely accuse a president of doing so. Otherwise, the sitting president is given the green light to falsely accuse any of his opponents of criminal acts without any evidence at all.
Richard Painter, former ethics counsel for the Bush White House, says the entire situation of Trump’s wiretapping tweets this weekend offer Congress a wonderful opportunity to unite both Democrats and Republicans alike in appointing a special prosecutor for the current Trump Russia scandal that has clouded the Trump white House since he took office.
Trump’s wiretapping tweets are not the first time the notion of impeaching Trump has hit the airwaves.
A movement known as Impeach Trump Now is close to 900,000 signatures on an Impeach Trump petition. Their petition is based on allegations of corruption.
Former Nixon White House counsel told reporters, “I don’t think Richard Nixon even comes close to the level of corruption we already know about Trump.”
It was the president himself who compared the Trump wiretapping situation to Nixon and Watergate scandal — in his own tweets. The Impeach Trump Now movement uses Trump’s financial situation and multiple conflicts of business interests as the starting point for their grounds for impeachment. The movement also cites multiple alleged violations of the Emoluments Clause by Donald Trump, as well as “dealings with foreign governments.”
Trump’s wiretapping tweets came just days after the latest step in the Trump-Russia scandal. It occurred just days after Attorney General Jeff Sessions was forced to recuse himself from any possible investigations related to Trump Russia dealings, after the Washington Post reported that then-Senator Jeff Sessions spoke with the Russian ambassador to the United States twice.
This might fly under ordinary business for someone on the Armed Services Committee, but Sessions also did not disclose this in his confirmation hearing when seeking the appointment of attorney general. Upon Sessions’ recusal from any possible Trump-Russia investigation, Donald Trump was reportedly furious and reportedly went “ballistic” on White House staff on Friday.
Before leaving for Mar-a-Lago yesterday, Pres. Trump summoned some senior staff to the Oval Office and went "ballistic," sources tell @ABC.— Evan McMurry (@evanmcmurry) March 4, 2017
It was just after 6 a.m. the next morning when Trump’s wiretapping tweets accusing President Obama of a felony occurred. The New York Times reports that the FBI has asked the Department of Justice to publicly assert that Trump’s wiretapping tweets were false. The Department of Justice has not done so.
Whether Trump’s wiretapping tweets will form an article of impeachment remains to be seen. At this point in time, it’s unknown whether such a wiretap against Donald Trump existed at all.
If he is false, however, the conduct in Trump’s wiretapping tweets could rise to the level of impeachable offenses. So too, however, would the illegal wiretapping of a presidential candidate.
Were it not for Trump’s wiretapping tweets, America would be none the wiser about any wiretapping at all. Either Donald Trump is correct and President Obama has committed a felony or he is not telling the truth, and there was no wiretapping against Donald Trump at all.
It’s also possible that Trump’s wiretapping tweets are accurate and there was wiretapping against Donald Trump or Trump Tower, and it was legal, and the Department of Justice cannot comment on an ongoing investigation. Either of the two first scenarios would rise to the level of impeachable offenses.
The third wouldn’t, but the content of an investigation conducted by the Department of Justice might. The answers remain to be seen, but answers to Trump’s mysterious wiretapping tweets will come in time. Until then, the truth and falsehoods are grappling.
[Feature Image by Evan Vucci/AP Images]