Donald J. Trump’s penchant for making shoot-from-the-lip accusations may have given former FBI Director James Comey and former FBI Deputy Director Andrew McCabe fodder for a defamation lawsuit against the president.
Last week Trump broadly accused unnamed officials of spying on his campaign and committing treason, a crime punishable by death. When pressed to identify who had committed Treason, Trump got specific, naming Comey and McCabe, and a few others.
Generally speaking, a defamatory statement is one that is: (1) a false statement of fact (2) negligently or intentionally communicated or published to a third party (3) causing injury or damage to the subject of the statement. Libel and slander are different types of defamation. Libel is a written defamatory statement, and slander is an oral defamatory statement.
Different rules of proof apply depending whether the person alleged to be defamed is a public person or private person. If a private person, he or she will typically need to prove only that the person making the statement acted negligently in making the statement, in failing to ascertain its truth or falsity.
However, if the person defamed is a public person, the plaintiff must meet a higher standard of proof. Liability for defamation of a public figure can only be established if the person making the statement actually knew that the statement was false or acted with reckless disregard as to the truth or falsity of the statement. Comey and McCabe are public figures so the higher standard applies.
The official White House transcript of a Q and A between NBC News’ Peter Alexander and the president sets out the following exchange:
ALEXANDER: Sir, the Constitution says treason is punishable by death. You’ve accused your adversaries of treason. Who specifically are you accusing of treason?
TRUMP: Well, I think a number of people. And I think what you look is that they have unsuccessfully tried to take down the wrong person.
ALEXANDER: Who are you speaking of?
TRUMP: If you look at Comey; if you look at McCabe; if you look at probably people – people higher than that; if you look at Strzok; if you look at his lover, Lisa Page, his wonderful lover – the two lovers, they talked openly.
In light of the foregoing, we must first ask whether the president made a false statement of fact.
Article III Section 3 of the Constitution defines treason in the United States as follows: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason. . . .”
Congress in fact declared the punishment of treason in 18 United States Code Sec. 2381. It provides that “Whoever . . . . is guilty of treason . . . shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
Clearly, Trump’s statement of fact was false; there are no facts to support his made-of-whole cloth assertion that Comey and McCabe committed treason. We are not at war (the last time we were at war within the meaning of the Constitution and statute was WWII) and Trump’s complaint was not that Comey and McCabe had aided an enemy of our country; rather he claimed they acted to “take down the wrong person,” namely him.
Next, we ask whether the president published his false statement of fact to a third party. Clearly the answer is “yes.” He made his accusation on national television. It had a very wide audience.
The next step is to consider whether the statement caused harm to those the president accused.
A statement is defamatory if it tends to hold the subject of the statement up to scorn, hatred, ridicule, disgrace, or contempt in the mind of any considerable and respectable segment of the community. One need only watch Fox News (briefly) to discern that, subsequent to – and as a consequence of – the president’s statement, Comey and McCabe have been subjected to such scorn, ridicule, and contempt. Moreover, many jurisdictions hold that allegations that an individual has committed a serious, notorious, or immoral crime; has an infectious or terrible disease, or is incompetent in his or her job, trade, or profession constitutes defamation per se. There can be no doubt that Comey and McCabe were harmed by the president’s false statement.
Finally, we must inquire whether the president knew, or should have known, that his accusation of treason was false. In other words, did he act with reckless disregard of the truth?
I have long doubted that Mr. Trump has read the U.S. Constitution. He may not actually have known that his accusation was false. But he should have known. He had every reason to know, every opportunity to know and, it can be fairly said, a duty to know.
When he was inaugurated, Mr. Trump took an oath of office, one prescribed by the Constitution. He raised his right hand, placed his left hand on a Bible, and echoed the words of Chief Justice Roberts who administered the oath: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
One who has pledged to “preserve, protect and defend the Constitution” can be expected to know its provisions. If Mr. Trump did not know that the targets of his accusation had not committed treason, he should have known.
As long ago as 1861, a piece in the New York Times explained: “Treason has ever been deemed the highest crime which can be committed in civil society; since its aim is an overthrow of the Government and a public resistance by force of its just powers, its tendency is to create universal danger and alarm, and on this account it has often been visited with the deepest public resentment.”
The framers of the Constitution took deliberate steps to ensure that accusations of treason would not be used as weapons against one’s political opponents. Now the president, in his rage and ignorance, has recklessly leveled this utterly specious and damning accusation at specific individuals.
And those individuals just may have a case.