President Donald Trump's newest pivot might be his way to divert attention from his own Russia troubles by leveling a Watergate-level conspiracy allegation at former President Barack Obama.
But this latest assertion that Obama ordered illegal surveillance of Trump Tower during the 2016 election — tweeted without evidence — could build and get the president into some legal hot water.
Although the law provides a great deal of leeway for political speech, that protection is not all encompassing. And because of the way Trump has leveled unsubstantiated accusations at Obama, he may have libeled his predecessor.
"He's basically stating that Mr. Obama committed crimes, and to state that somebody has committed a crime when it's false is clearly defamatory," said Benjamin Zipursky, who teaches defamation law at Fordham University Law School in New York.
"The question is: Is there enough evidence of serious reckless disregard to send that case to a jury?" Zipursky added. "I don't know what a court would decide on that, but there is some evidence of recklessness."
It's difficult for public figures to win libel cases. Most courts rule against them because the assumption is that they have chosen to make their lives an open book, which means people will talk about them. But past Supreme Court cases have created a basic standard that seeks to answer two legal questions:
* Was the statement false?
* Did the person know it was false or was he or she reckless about whether it was false?
The answer to both questions must be yes, and that could be a difficult conclusion to draw.
"What the plaintiff has to show is that the defendant has said, written or tweeted something that is a false statement of fact that harms the reputation of the defendant, and because Obama is a public official, you have to show that it was done with some sort of intent to harm," said Jay Wexler, a professor of constitutional law at Boston University Law School.
Despite that high threshold, a fair amount of evidence is beginning to build that Trump might have crossed the legal line.
A senior U.S. official told NBC News that FBI Director James Comey asked the Justice Department over the weekend to publicly reject Trump's claims because they were untrue.
FBI Director James Comey asked Justice Department officials to publicly reject President Donald Trump's claims that former President Barack Obama ordered the wiretapping of Trump Tower, The New York Times reported Sunday. A senior U.S. official confirmed the newspaper's reporting to NBC News.
The Times reported that Comey requested that the Justice Department publicly rebut the president's allegations — which he posted on Twitter without evidence — because the claims are untrue and suggest that the FBI broke the law. Comey's appeal pits him against the president.
Related: White House Calls for Probe, Offers No Proof of Wiretapping
But, The Times added, Comey is having difficulty knocking the story down because there are only a few politically appointed Justice Department officials who could approve a statement, as Attorney General Jeff Sessions recused himself from anything pertaining to the government's investigation into alleged connections between Russia and the Trump campaign.
President Donald Trump leaves the Oval Office to board Marine One at the White House on Friday. Erik S. Lesser / EPA
Despite Comey's request, Trump's White House did not back off on Sunday and called for Congress to investigate.
"President Donald J. Trump is requesting that as part of their investigation into Russian activity, the congressional intelligence committees exercise their oversight authority to determine whether executive branch investigative powers were abused in 2016," White House Press Secretary Sean Spicer said in a statement. He offered no evidence to back up the allegations, which Trump compared to a scandal of "Nixon/Watergate" proportions.
NBC News has found no evidence that would support his claims, which have been flatly dismissed by the previous administration.
An Obama spokesman called Trump's tweets "unequivocally false," and James Clapper, the former director of national intelligence, said on NBC's "Meet the Press" that he had no knowledge of any surveillance of Trump Tower.
Later Sunday, Democrats on the House Judiciary Committee demanded that White House counsel Donald McGahn respond to The Times' report that his office had sought to gain access to what he "believed to be an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates."
Such an effort would be "inappropriate" and "improper," the lawmakers said in a letter to McGahn obtained by NBC News.
"The independence of the Department of Justice and the FBI is a particular concern when individuals associated with both the Administration and the President's campaign may be the targets of the investigation," the lawmakers said.
Meanwhile, politicians on both sides of the aisle said the White House needed to provide evidence to back up the president's allegations.
"Suffice it to say I don't have any basis — I've never heard that allegation made before by anybody," Sen. Marco Rubio of Florida, a Republican member of the Select Committee on Intelligence, said Sunday.
"I've never seen anything about that anywhere before," Rubio said. "But again, the president put that out there, and now the White House will have to answer as to exactly what he was referring to."
NBC
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