Could Obama Sue Donald Trump Over ‘Birther’ Conspiracy?

The presidential race has been pretty crazy as of late, and it recently provided Big Law Business with a pretty crazy question.

Does President Barack Obama have any grounds for legal claims against Donald Trump for knowingly spreading false information (or, lying, as The New York Times reported it) about POTUS’s place of birth?

Trump’s so-called ‘birther conspiracy,’ that Obama was not actually born in Hawaii where his birth certificate states, was recently revived when Trump admitted Obama was born in the U.S., but falsely placed blame on Hillary Clinton for starting the unfounded rumor.

The degree to which the birther controversy escalated in the press prompted us to ask the legal questions: Could this be considered defamation? And if so, how would President Obama go about bringing such claims? Would he stand a chance in court?

For this hypothetical and long-shot scenario, we checked in with two lawyers who specialize in media law: Robin Luce-Herrmann, practice department chair of Butzel Long’s litigation practice, and Jason Criss, of counsel at Covington & Burling.

“The president would have to prove that Trump made false statements, either knowing that they were false or being reckless as to their truth or falsity, and they would have to prove it under clear and convincing evidence,” said Criss.

That is the result of a high standard Obama would have to meet in bringing this lawsuit as a prominent public figure.

“They have to prove actual malice,” said Criss. “If someone generally believes a statement, even if the statement is proven later or demonstrated later to be false, that is not enough for a public figure [to bring a case].”

As for Criss’s part, he believed that Trump is certainly liable on those grounds, but the question would be damages. How would Obama prove he was harmed by Trump’s falsehoods? Could he come up with some creative claim that his time is money, and any time spent responding to the lie cost him dearly? [Which brings us to a tangent question: If Obama was a practicing lawyer, how much would his hour be worth?]

Luce-Herrman, the practice leader at Butzel Long, said that Obama would face an uphill battle bringing any defamation claim if the allegations hinged on emotional distress damages.

She pointed to one big case that illustrated the limitations. In 1988, political commentator Jerry Falwell sued Hustler magazine for “intentional infliction of emotional distress” based on an unflattering portrayal it published in a parody ad. The U.S. Supreme Court threw it out, saying the magazine was protected under free speech rights.

“You can’t just say, ‘I’m going to sue because this hurt my feelings,’” said Luce-Herrman.

But what would Obama say? We reached out to the president (who received his J.D. from Harvard Law School in 1991 and was the first black president of the Harvard Law Review, mind you). We’ll update this post if we hear back. But for now, we’ll rely on this clip, in which he says: “My hope would be that the presidential election reflects more serious issues than that. All right? Thank you very much.”

Write to us at BigLawBusiness@bna.com.

https://www.youtube.com/watch?v=BmLD4JMpSQQ