Barack Obama is right that Donald Trump’s threat of a prosecution for treason is a “distraction.” No doubt, Trump needs a distraction. He needs to change the Epstein cover-up narrative. What better way than to defame the ex-President by claiming he fabricated evidence of Russian interference in the 2016 election?
Trump knows Obama has no legal recourse against his defamation. Under the principles announced in Fitzgerald v. Nixon, his actions are immune from civil liability. He’s free to sue Rupert Murdoch for $10B for defamation, but under the Supreme Court’s reasoning, no one is allowed to sue him.
And Trump also recognizes that he has no legal recourse against Obama either. Under the reasoning of Trump v. United States, any meaningful evidence of alleged treason would be excluded from any trial. If there were indeed two witnesses who would testify against him (as the Constitution requires), their testimony would likely be excluded as well.
But nothing requires that a defendant invoke immunity in any prosecution against him. Immunity is a privilege, not a jurisdictional bar. That fact gives Obama a pretty powerful rhetorical tool against this flailing and failing President:
Obama should offer to waive his immunity from prosecution for treason, if Trump waives his…
