Can Obama Sue Trump for His Wiretapping Claims?

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By Maura Perri, Staff Writer

On March 4, 2017, President Donald Trump turned to Twitter to tell his nearly 27 million followers: “Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found…” and “How low as President Obama gone to tapp my phones during the very sacred election process…”[1]

Since Trump made these claims against former President Barack Obama, there has been constant news coverage and dialogue on the matter. Multiple intelligence sources (including the FBI, the House Intelligence Committee, the Senate Intelligence Committee, and the Justice Department) have announced that there is no direct evidence supporting these claims,[2] but Trump has continued to present them as valid. When German Chancellor Angela Merkel recently visited the U.S., Trump drew a comparison between himself and Merkel: “As far as wiretapping I guess this past administration, at least we have something in common, perhaps.”[3]

Due to the derogatory nature of these claims, many have suggested that Obama could bring a libel suit against Trump. But would such a tort claim be successful?

According to the Restatement (Second) of Torts, to bring a successful defamation claim (libel being a type of defamation), there must be a false and defamatory statement, a publication of that statement to a third party, and harm caused by the publication.[4] Therefore, if these claims are false, as suggested by the evidence, because the statements were on Twitter, and because they could negatively affect Obama’s rapport with the American people, “the former president would stand on solid ground if he decided to file a libel suit against President Trump.”[5]

The case of Obama v. Trump, however, is unlikely to make its way to courts. Because Obama is “a member of an extremely exclusive brotherhood” — as a president of the United States — he would be “apprehensive to break with [the] tradition” of presidents not bringing disputes against one another.[6] Furthermore, as Obama is in retirement, he would “probably prefer drinking a Mai Tai on the shores of Kailua Bay in Hawaii” than bring suit.[7]




[2] Veronica Stracqualursi and Adam Kelsey, A timeline of President Trump’s unsubstantiated wiretapping claims, ABC News (March 18, 2017)

[3] Stephen Collinson, Trump stands by wiretapping claim during Merkel visit, CNN (March 18, 2017)

[4] Restatement (Second) of Torts § 558 (West 2017).

[5] Daryel R. Dunston, Can Obama Sue Trump for Libel?, The Huffington Post, (March 8, 2017)

[6] Id.

[7] Id.

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