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  •   Court Weighs Immunity For President

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, January 14, 1997; Page A01

    The Supreme Court yesterday took on the question of whether President Clinton can be forced to stand trial on sexual harassment charges brought by Paula Corbin Jones, but the vigorous questioning by the justices suggested that they weren't comfortable on either side of the issue.

    During oral arguments on the politically charged case, many of the justices appeared troubled by the notion of granting the president blanket immunity from a sexual harassment lawsuit, or any other civil case, until he leaves office.

    But the court nonetheless seemed mindful that the job of the nation's chief executive carries unique responsibilities and burdens that must be weighed against an individual's right to have a claim heard in a timely fashion. By the end of the hour-long session, it appeared the justices were searching for some middle ground that would account for each party's interest, though they gave little indication of how they would do that. A decision is expected before the court recesses this summer.

    Jones's specific allegations – that Clinton sexually harassed her in 1991 when he was governor of Arkansas and she a low-level state employee – were not heard by the court. Instead, the question before the justices is whether a sitting president is immune from a civil lawsuit until he leaves office.

    Justice Antonin Scalia said he did not find it "terribly persuasive" that the president was so busy he could not deal with a civil case. He noted that the president can delegate duties and remarked that he had seen "presidents riding horseback, chopping wood . . . playing golf. . . . This notion that he doesn't have a minute to spare isn't credible."

    But Justice Ruth Bader Ginsburg observed at one point that the president was not seeking a free ride and told the president's lawyer, "You're not saying 'whether' [the president would have to stand trial] but 'when.' "

    The case presents a significant constitutional dilemma that would affect the institution of the presidency and all who assume the White House in future generations. But its most immediate political impact will be on the current occupant of the job, who, if the case is allowed to go forward, could be haunted by Jones's allegations throughout his second term. Already, the case has become the subject of newspaper headlines, magazine covers and talk show fodder, all of which have renewed attention to Jones's basic claim that Clinton exposed himself to her and sought sex from her in an Arkansas hotel room.

    In a packed courtroom peppered with the occasional White House adviser, the justices pounded the lawyers on each side, while a political sideshow was in full swing outside, including a half-dozen men wearing Clinton masks who opened their trench coats and pretended to "flash" passersby.

    Robert S. Bennett, Clinton's high-profile lawyer, argued that the Constitution's separation of powers doctrine prevents one branch of government from encroaching on the activities of another. In this case, a judge would be able to dictate the schedule of a president by imposing on him all the time-consuming burdens that standing trial would involve. It would be "unprecedented" to subject the president to such legal proceedings, Bennett said.

    Joining in the president's defense was the government's top lawyer before the court, Solicitor General Walter Dellinger, who asserted, "Litigation can be all consuming and all absorbing."

    Gilbert K. Davis, representing Jones, argued that while a president can be protected from a lawsuit resulting from actions he took as part of his official duties, a president should not get immunity for his personal actions. Such lawsuits should only be delayed when a president can demonstrate that the suit would imminently interfere with the nation's business.

    No matter how the court rules, the underlying dispute in Clinton V. Jones is at such an early stage that no trial is likely to begin soon on Jones's claim that Clinton asked her to perform oral sex on him. The president has denied the charges.

    When Jones initially filed her claim in 1994, Clinton moved to have the case dismissed on the grounds that he should not be required to stand trial while he is still president. A federal district court ruled that the trial itself should not go forward, but that lawyers on both sides could begin interviewing witnesses as part of the legal "discovery" process.

    The district court said that while the president is not entitled to have the case dismissed on the basis of constitutional immunity, he should not have to devote time and effort to a defense while in office.

    Both sides appealed, and one year ago, the 8th U.S. Circuit Court of Appeals overruled the earlier decision and sided with Jones.

    "The president . . . is subject to the same laws that apply to all other members of our society," the court said in its ruling.

    Clinton appealed that ruling to the Supreme Court.

    While the justices expressed no majority reasoning yesterday, some intimated they would not adopt the 8th Circuit's firm rule to have the case proceed. Similarly, some justices bristled at the idea of using the Constitution to grant presidential immunity from civil suits.

    The tenor of some questions suggested that one outcome might be a ruling that allows trial judges to decide for themselves when a president should be granted a delay based on the merits of an individual case they find before them. In other words, the high court might not grant immunity across the board to occupants of the White House, but it could write a ruling that would allow President Clinton to return to a lower court and make a specific, detailed claim about why he should be given a delay.

    Pointing up the difficulty of granting blanket immunity, Justice Sandra Day O'Connor asked whether, in a child custody matter, it would be fair for a president's spouse not to be able to resolve the matter or for the child not to know where he would live for possibly eight years.

    Another difficult area involves the prelude to trial known as "discovery," during which lawyers interview witnesses and gather documents related to a claim. In this case, discovery could focus new public attention on previously reported comments from Arkansas state troopers that they helped arrange dates for Clinton. That legal process alone, some of the justices seemed to indicate, could consume as much of Clinton's time. Ginsburg, for example, observed that discovery could be just as disruptive to a litigant's life as trial.

    But other justices worried about the flip side – if evidence isn't gathered for four more years, people's memories could fade and documents could be lost. Justice David H. Souter asked Bennett why interviews of other people who might be called as witnesses would tax the president's time. "It's going to keep you busy, but the president isn't going to be attending all these depositions," he said.

    Bennett referred to potential allegations from some state troopers, and said the president might be compelled to defend himself – a process that, again, would take time from national concerns. Bennett said the president already had spent "a lot of time" on the case.

    The president's lawyers relied primarily on a 1982 Supreme Court ruling, Nixon v. Fitzgerald, that said a president was immune from civil lawsuits that resulted from his official actions in office.

    But Chief Justice William H. Rehnquist said that ruling was based on fears that a president would not be able to vigorously carry out his official duties unless he had absolute immunity. Bennett responded that, nonetheless, the court was concerned in the case against Nixon about intrusions on the president's time.

    Scalia asked why the court should not set aside the immunity question and wait until the president "has the intestinal fortitude" to assert at the start of a trial that he is too busy to participate and wants a delay.

    Davis, who referred to Clinton as "the citizen" who holds the office of the presidency, said Nixon v. Fitzgerald could not be extended to protect a president's private conduct. He said trial judges naturally would be sensitive to a president's time and manage a case accordingly.

    But the justices questioned what standards judges would use. Justice Stephen G. Breyer asked whether the president could seek an end to discovery by saying that some witnesses' depositions demanded extensive responses.

    Davis said, as a rule, that discovery would not be postponed unless the president demonstrated "actual interference" with his duties.

    "Isn't that inevitable in this case," Justice Anthony M. Kennedy asked.

    © Copyright 1997 The Washington Post Company

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