Dispatch from Bizarroworld: Trump will bring back civility

Now that President Donald Trump revoked ex-CIA Director John Brennan’s security clearance, what comes next? As incredible as it may sound, Trump could sue John Brennan to help bring some civility and integrity back to today’s poisoned political atmosphere. Ever since the 1960s, the pendulum of public debate among government officials has swung from responsible disagreement to unhinged hostility. The disconnection of fact from political discourse has been condemned by both Presidents Obama and Trump. Obama decried the untethering of political discussion from reason and fact:

“When it doesn’t matter what’s true and what’s not, that makes it all but impossible for us to make good decisions on behalf of future generations.”

Trump came to the same conclusion:

“We want fairness … You can’t say things that are false, knowingly false and be able to smile as money pours into your bank account.”

The fair solution

Top down censorship such as being implemented by the big social media platforms never works. It only breeds suspicion and further hostility — on both sides of the political divide. However, providing consequences for deliberate falsity by ex-government officials would and should swing the pendulum back towards fact.

The current mess started with the landmark 1964 Supreme Court case of New York Times v. Sullivan. The court decided that to inhibit self-censorship, they would make an exception to libel law for public officials. After that case, you could say anything about a public figure as long as it was not made with “actual malice” — knowingly false or with reckless disregard for the truth. In effect, public figures could rarely — if ever — win a libel case after that.

The problem is that was in the day of somewhat responsible big media. In the Internet age, anyone has access to publication, not subject to the old journalistic standards.

Trump v. Brennan is unique

Against this backdrop and in a hyper-partisan political atmosphere, John Brennan entered the fray, when he leveled his now infamous treason accusation, via Twitter and later on the NBC network, where he now is a contributor.

“Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous. ... he is wholly in the pocket of Putin."

Brennan, of course, is not the average internet troll. As former head of the CIA under Obama, Brennan’s accusation of treasonous activity carried an aura of validity, given his presumed expertise on the subject.

Unfortunately for Brennan, as satisfying as hurling a political dirty bomb might have been, there was no treason by any stretch of the imagination. Article 3 of the U.S. Constitution defines treason, and requires an "overt act" of either (i) waging war against the United States; or (ii) giving "aid and comfort" to an "enemy." You may disagree with Trump’s approach, but nothing in his press conference was an “overt Act” under the legal definition. Likewise, although Russia often is hostile to U.S. interests, we are not at “war” with it, and it is not an “Enemy” under the legal definition. Even the Soviet Union in the Cold War did not meet the legal definition, which is why the Rosenbergs, who provided nuclear bomb plans to the Soviets, were convicted of espionage, not treason.

Brennan acted recklessly
Of all people, the ex-CIA director should know what treason is. That is why Brennan is special — he knowingly or recklessly made the false statement. Applying each of the libel criteria, it is evident that Brennan committed an actionable libel:

Did Brennan make a false statement? Yes.

Was Brennan’s accusation defamatory? Yes.

Were Brennan’s statements made with “actual malice”? Yes.
Even tough actual malice is difficult to prove, the case of John Brennan is particularly compelling. Indeed, his statements demonstrate that he had actual knowledge of the legal requirements of the crime of treason, and despite that, he leveled the false accusation, knowingly, or with reckless disregard for the truth.

So, can Trump sue Brennan?

In a word, yes. President Trump can sue Brennan for libel. A court or jury properly instructed could conclude that Brennan accused Trump of treason knowingly, or at least with reckless disregard for the truth. A Trump versus Brennan case with its compelling facts could provide the most interesting vehicle for to tether again the political discourse to reason and fact — a bipartisan issue if ever there was one.