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Petition to Reintroduce Lewinsky Evidence

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Related Links
_ Jones Seeks Delay to Get Lewinsky Evidence (Washington Post, April 1)

_ Full Text of Other Legal Documents

_ Full Coverage: Clinton Accused

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Released on Tuesday, March 31, 1998

Following is the full text of the petition filed by Paula Jones's legal team asking the 8th U.S. Circuit Court of Appeals to allow them to restore evidence related to Monica S. Lewinsky to their case – and delay their May trial date if necessary.

(The Table of Authorities and footnotes are not included.)

PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

TABLE OF CONTENTS

I. Jurisdiction

II. Nature of Case

III. Challenged Orders

IV. Factual Background

V. Why the Writ Should Issue

Conclusion

Petitioner Paula Jones (hereafter "Mrs. Jones" or "Petitioner") requests this Court to enter a Writ of Mandamus directing the District Court to vacate its orders of January 29, 1999 and March 9, 1998.

I.
JURISDICTION

The District Court has jurisdiction over this civil rights action by operation of 28 U.S.C. § § 1331 and 1343. This Court has jurisdiction over this Petition because it is empowered to grant a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, and it would have jurisdiction of a final appeal in this case under 29 U.S.C. § 1291.

II.
NATURE OF THE CASE

This case is both unique and important. It is unique because one of the defendants is the President of the United States. And it is unique because the President is under investigation for possible criminal activity – including perjury, subornation of perjury and obstruction of justice – all arising out of this very civil action.

This case is important because both sides invoke compelling national interests, that were the subject of earlier appeals in this case. Petitioner, who is suing the President, stands for the principle that those to whom power is entrusted must be held accountable for abuses of that power, lest further and more egregious abuses inevitably follow. Mr. Clinton, of course, invokes the need to protect the chief executive from the distraction of defending civil cases during his term. Those interests have now clashed again, but this time, Mr. Clinton reverses field and argues that delaying this trial would ill suit his interests.

At issue in this Petition is the District Court's decision in response to a motion by the Office of Independent Counsel ("OIC") merely to stay discovery, instead to terminate Petitioner's discovery in process. Petitioner, Mrs. Jones, was pursuing discovery in support of her civil rights claims against Mr. Clinton and his bodyguard, Trooper Danny Ferguson. In particular, Petitioner sought to uncover the relationship between Mr. Clinton and Monica Lewinsky and efforts to suppress evidence and tamper with witnesses in this case concerning that relationship and others. The District Court previously had ruled that Petitioner could pursue just this type of discovery and specifically had denied a motion to quash Ms. Lewinsky's deposition.

Well after Petitioner initiated this discovery, the OIC began investigating whether Mr. Clinton obstructed justice in this case; thereafter, the OIC moved to abate discovery. The District Court decided not to halt discovery temporarily, but sua sponte, ruled that any discovery relating to Monica Lewinsky would be permanently enjoined so as to preserve the current trial schedule. This decision cannot be justified by any reading of the Federal Rules of Civil Procedure. The District Court based on a misreading of the prior appellate decisions in this case, believed it had to give Mr. Clinton a speedy trial if he so requested. The Court, thereby, sought to satisfy Mr. Clinton's stated political desire to get this case behind him as a means of controlling his current political crises. The rights of Mrs. Jones, however, "to an orderly disposition of her claims" were once again ignored. Clinton v. Jones, 520 U.S. ____, 137 L.E.2d 945, 970, 117 S.Ct 1636, 1652 (1997).

For the second time, the District Court, the Hon. Susan Webber Wright presiding, determined that applicable procedural rules do not apply to this case because Mr. Clinton is currently the President of the United States, effectively conferring a status on him different from other citizens. The District Court first applied the law differently to Mr. Clinton in concluding that the case could not proceed to trial because the President "should not have to devote his time and effort to the defense of this case at trial while in office." 869 F. Supp. 690, 698 (E.D.Ark. 1994). This Court reversed because "Mrs. Jones is constitutionally entitled to access to the courts and to the equal protection of the laws." Jones v. Clinton, 72 F.3d 1354, 1360 (8th Cir. 1996), affirmed, 520 U.S. ____, 137 L.E.2d 945, 117 S.Ct. 1636 (1997).

   


Now the District Court directs that timely-scheduled discovery may not be had because "the substantial interests of the Presidency" require that the trial go forward on May 27, 1998. MAR. 9 ORDER p. 3. Mr. Clinton's "substantial interests" have nothing to do with the Office of the Presidency; instead, Mr. Clinton sought "to expedite the motions and trial schedule" so media reports about evidence could be tested "in full public view, and the public can make its own credibility determinations." PRESIDENT CLINTON'S MOTION FOR EXPEDITED TRIAL AND MOTIONS SCHEDULE, pp. 4-5. The District Court has taken as true Mr. Clinton's unsubstantiated assertion that a prompt trial is important to "the institution of the Presidency." Id. at 5.

In effect, the District Court has adopted and elevated White House damage control to Constitutional heights. It is apparent that the District Court's orders were to benefit the person currently holding the Office of the Presidency, not the Office of the Presidency itself, ignoring the distinction this Court drew between citizen Clinton and the Office of the President. 72 F.3d at 1360.

If the District Court's Orders are not overturned, Mrs. Jones will be forced to go to trial without significant evidence which the District Court has repeatedly held – both in the orders here on review and in earlier rulings in this case – is relevant. Since the District Court has improperly interpreted this Courts and the Supreme Court's directives, and thereby has ignored the Federal Rules of Civil Procedure, mandamus should issue to prevent diversion of Mr. Clinton's energies on a trial that, if he prevails, will be for naught.

III.
CHALLENGED ORDERS

On January 29, 1998 at 5:04 p.m., the OIC served on Petitioner its "Motion of the United States for Limited Intervention and a Stay of Discovery." The OIC cited concerns that Petitioner sought to depose witnesses the OIC was calling before the grand jury and that Mr. Clinton had even subpoenaed information directly from the OIC. OIC MOTION, p.2. The OIC urged that to prevent piercing "the veil of grand jury secrecy required under FED. R. CRIM. P. 6(e)" an immediate stay of discovery was required. Id. at 2. Given the urgency of the relief sought – to halt depositions scheduled for the next day – the District Court convened an emergency telephone hearing the next morning and issued her ruling at the completion of that hearing. Leaping outside the context of the OTC's Motion, the District Court ruled that discovery related in any way to Monica Lewinsky (hereafter the "Lewinsky Discovery") would be permanently enjoined because Judge Wright would not admit that evidence at trial. The District Court, therefore, made an admissibility ruling during the discovery phase of the case without even having before it the evidence that was summarily excluded.

Consistent with its prior rulings, the District Court reaffirmed that the Lewinsky Discovery is within the bounds of discovery and "would be relevant" on multiple grounds. TRANSCRIPT OF JAN. 29 HEARING (Tab B), p. 29. The District Court, however, purported to exercise its discretion under FED. R. EV. 403 to exclude evidence on grounds that it would "delay" the case. ORDER (Tab C), p. 2. The Court's rationale was not that the "probative value [of the Lewinsky Discovery] is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of under delay, waste of time, or needless presentation of cumulative evidence." FED. R. EV. 403. The District Court's concern was, because of the stay required to permit the OTCs investigation to proceed, the delay in beginning the Lewinsky Discovery would put off the trial date. The District Court, strongly desiring to complete this case on its predestined timetable, found that such "delay" would be inappropriate. The District Court's desire derived from. Mr. Clinton's previous request to accelerate the trial date, so, he hoped, he could sooner disprove Petitioner's claims and quiet his critics.

On February 10, 1998, Petitioner moved for reconsideration which the District Court denied on March 9, 1998. In that order the District Court clarified its earlier ruling, citing three supporting justifications. Again, the District Court emphasized that although the Lewinsky Discovery "might be relevant to the issues in this case," it cited FED. R. EV. 403 to justify excluding the evidence because "admitting any evidence of the Lewinsky matter would frustrate the timely resolution of this case and would undoubtedly cause undue expense and delay." MAR. 9 ORDER (Tab D), p.3.

The second justification for excluding evidence relating to the Lewinsky Discovery was the "substantial interests of the Presidency" in a "speedy resolution of this case..." Id. These perceived "substantial interests" were based solely on Mr. Clinton's uncorroborated assertions that expediting the trial would allow the "public to make its own credibility determinations." MOTION TO EXPEDITE (Tab H) p. 5. Mr. Clinton has never feigned an explanation how accelerating the trial would serve the Office of the Presidency as distinct from his own political goals.

The third justification advanced by the District Court was the perceived need to avoid interference with the OTC's criminal investigation. The District Court did not explain, however, why such interference could not be avoided in some way less drastically prejudicial to Mrs. Jones. The OIC's needs could easily be met by the simple stay it requested.

In short, to appease Mr. Clinton individually as a politician, the District Court unjustifiably terminated the Lewinsky Discovery to preserve the scheduled trial date.

IV.
FACTUAL BACKGROUND

Mrs. Jones' Claims: This is a civil rights action brought pursuant to 42 U.S.C. § § 1983 and 1985 charging that defendants Mr. Clinton (at the time Governor of Arkansas) and Danny Ferguson (then one of his state trooper bodyguards) discriminated against Mrs. Jones on the basis of her gender and in so doing violated her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Specifically, Mrs. Jones alleges that Mr. Clinton, conspiring with his bodyguard Mr. Ferguson, fetched Mrs. Jones to a hotel room where he awaited her alone; that when she arrived, he reminded her of his superior employment position over her; and that he then touched her without her consent, exposed himself, and requested oral sex of her. When she refused, he again reminded her of his employment relation, admonished her to silence, and only then allowed her to leave. In several incidents following this one, Mr. Clinton again touched Mrs. Jones without her consent and made various remarks regarding her appearance; he also had his agents request sex of her on his behalf.

Because she refused his sexual overtures, Mrs. Jones was penalized in the terms of her employment, ultimately being placed in a dead-end job with no opportunity for advancement Mrs. Jones' treatment in this respect stands in marked contrast to the government treatment accorded at Mr. Clinton's behest to those women who acquiesced to his sexual advances: these women were given government jobs and government resources as compensation.

Progress of Discovery: Discovery in this case began in earnest in October 1997, less than four months before the OIC's motion. One of Petitioner's discovery goals was to obtain evidence to undercut Mr. Clinton's anticipated testimony that "in [his] lifetime [he] never sexually harassed a woman ..." CLINTON DEP. at 205. Further, Petitioner sought evidence of whether Mr. Clinton had rewarded or punished women by granting or withholding state or federal jobs or perks as a quid pro quo for accepting or refusing sexual relations with Mr. Clinton.

By her investigation, Petitioner came to believe that Mr. Clinton had sexual contacts with Monica Lewinsky, a former White House employee. Accordingly, on December 17, 1997, Petitioner issued a subpoena to Monica Lewinsky, served two days later, scheduling her deposition for January 23, 1999. Compelling evidence, in the form of taped telephone conversations between Ms. Lewinsky and a friend, Linda Tripp, suggests that beginning in 1995, Mr. Clinton and Ms. Lewinsky – then a twenty-one year old White House intern – engaged in a sustained sexual relationship in which he apparently demonstrated a preference for the same type of sex he requested from Mrs. Jones, TRIPP DECL. ¶4. Further, Ms. Lewinsky was seemingly granted highly unusual access to the President and various federal government employment opportunities, in return for her sexual relationship with him. At least as significant, there is strong evidence – and this is a subject, in part, of the OIC's investigation – that Ms. Lewinsky was offered government and private-sector jobs at Mr. Clinton's behest, in return for her agreement to sign a perjurious affidavit in this case denying that any sexual relationship ever existed between Mr. Clinton and her. Ms. Lewinsky told Ms. Tripp that in response to her subpoena in this case, "that she was going to deny everything, that President Clinton would deny everything and she repeatedly stated that I must lie and deny that she had ever told me anything about a relationship with President Clinton." TRIPP DECL., ¶4.

Equally significantly, Ms. Lewinsky's testimony is expected to intersect with the testimony of Kathleen Willey, who has testified that Mr. Clinton sexually assaulted her in a private hall outside the Oval Office when she met him to discuss obtaining a paying White House job. Ms. Tripp, then a White House employee, spoke to Ms. Willey immediately after the encounter in November 1993. TRIPP DECL. ¶13. In late 1997, Ms. Tripp, then under subpoena to testify in this case, was approached by Ms. Lewinsky and urged to lie about the Willey incident and was given a "talking points" memorandum, origin as yet unknown, advising her to alter her testimony about her eyewitness account of Ms. Willey's demeanor and statements on that critical day in November 1993.

Through the course of discovery, the District Court denied repeated attempts by Mr. Clinton and third-party witnesses to halt inquiry into this very type of evidence. Monica Lewinsky was, in fact, the sixth "Jane Doe" to move to have her deposition quashed, and all of such motions were denied. Ms. Lewinsky's motion, filed on January 16, 1998, was summarily denied per oral order entered at the conclusion of a January 22 teleconference.

On January 17, 1998, Petitioner deposed Mr. Clinton and inquired into his relationship with Ms. Lewinsky, and Mr. Clinton's counsel's objection were overruled by Judge Wright, who attended and presided over the deposition. CLINTON DEP. (Tab J) at 53-56. Mr. Clinton denied any improper relationship with Ms. Lewinsky and denied that he had intervened in any way to encourage Ms. Lewinsky to change her story. Id. at 78, 80-82.

After Mr. Clinton's deposition, Petitioner scheduled depositions of four other persons who potentially could confirm important details concerning Ms. Lewinsky's relationship with Mr. Clinton and how she obtained her federal and private-sector jobs. Also, Petitioner issued subpoenas for documents only to twelve persons who may haw had relevant records concerning Ms. Lewinsky and efforts to suppress her testimony. All of the depositions were scheduled and the subpoenas returnable on or before January 30, 1998, the end of the Court's scheduled discovery phase of the case. Then, on January 28, 1998, two days before all of this discovery would be complete, the OTC filed a motion to stay discovery.

The Initiation of a Criminal Investigation into Perjury, and Subornation of Perjury, in this case by Mr. Clinton and others, and the OIC's Motion for A Stay. A criminal probe was opened in January of this year into whether persons "suborned perjury, obstructed justice, intimidated witnesses or otherwise violated federal law ... in dealing with witnesses ... [in] the civil case Jones v. Clinton. ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT, DIVISION FOR THE PURPOSE OF APPOINTING INDEPENDENT COUNSELS (January 16, 1998). Petitioner attempted to learn as much as possible about these charges, which obviously bear directly on the facts at issue in this case. As a result, the prosecutor – here, the OIC – filed a motion in the District Court on January 28, 1998, seeking an across-the-board stay of proceedings in this case to prevent interference with its ongoing criminal investigation and to avoid breach of the secrecy of grand jury -proceedings.

   


V.
WHY THE WRIT SHOULD ISSUE

A. MANDAMUS RELIEF IS PROPER.

This Court has already recognized that the novelty and importance of the national interests at issue in this case are sufficient to justify issuance of a writ of mandamus or prohibition where necessary to protect them:

    [W]e have every confidence that the District Court will discharge its responsibility to protect the President's role as our government's chief executive officer, without impeding Mrs. Jones's right to have her claims heard without undue delay. If either party believes the court is failing to discharge that responsibility, the proper course is to petition this Court for a writ of mandamus or prohibition.
Jones v. Clinton, 72 F.3d 1354, 1363 (8th Cir. 1996), aff'd, 520 US, ___, 137 L.Ed.2d 945, 117 S.Ct. 1363 (1997) (emphasis supplied). It is noteworthy that this statement appears in an opinion rejecting Mr. Clinton's claim of immunity from civil suit. The Court refused to find that Mr. Clinton's interest in not being distracted "trumps" Mrs. Jones' interest in having her claims heard "without undue delay." Id. 1f, as the Court held, Mrs. Jones's right to present her claims "without undue delay" is important enough to protect by mandamus, then a fortiorari the more fundamental right to present fully her claims must also be important enough to protect by mandamus.

To the contrary, the District Court concluded it is more important to protect Mr. Clinton's stated political desires than to permit Mrs. Jones to present her claims with crucial supporting evidence. The District Court did so not to protect Mr. Clinton from any particular inconvenience or scheduling conflict, for none was identified by him. The District Court sacrificed vital evidence on the altar of unverified Presidential convenience.

It is precisely this kind of ruling – driven by the unique and extraordinary features of this case – from which this Court invited Mrs. Jones to seek mandamus relief. 72 F.3d at 1363. In noting dig the writs of mandamus and prohibition might be appropriate, the Court followed a long line of cases recognizing the propriety of mandamus to correct errors by lower courts in addressing new and important issues. The watershed case is Schlagenhauf v. Holder, 379 U.S. 104 (1964).

In Schlagenhauf, a bus crash resulted in a diversity case in federal court. The bus driver, among others, was named as a defendant. On motion of a co-defendant, the driver was ordered to submit to a physical examination under FED. R. CIV.P. 35. The driver sought mandamus relief, presenting issues whether one defendant can require another defendant to submit to an examination, and what constitutes "good cause" under the rule. The court of appeals denied mandamus, but the Supreme Court reversed, holding that mandamus should issue. 379 U.S. at 110-12. The Supreme Court emphasized that the issue presented was one "of first impression that called for the construction and application of Rule 35 in a new context." Id. at 111. Mandamus was warranted "to avoid piecemeal litigation and to settle new and important problems." Id.

Schlagenhauf has been widely cited as authorizing the use of mandamus where an important issue, or one of first impression, is involved. See Comment, Supervisory and Advisory Mandamus Under the All Writs Act, 86 HARV.L.REV. 595, 616-18 (1973). Typical of its progeny is Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977). In Bauman the court distilled from the case law five guidelines to help in deciding whether issuance of the writ is appropriate, and one of them is whether "[t]he district court's order raises new and important problems, or issues of law of first impression." 557 F.2d at 654-55.

These guidelines were in turn quoted and applied by the Eighth Circuit in In re Bieter Co., 16 F.3 d 929, 932 (8th Cir. 1994).


    (1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired.

    (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first.)

    (3) The district court's order is clearly erroneous as a matter of law.

    (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules.

    (5) The district court's order raises new and important problems, or issues of law of first impression.

Bieter, 16 F.3d at 932 (quoting Bauman, 557 F.2d at 654-55). The court emphasized that these are merely guidelines, not a litmus test. Id. The decision whether to issue the writ "remains largely one of discretion." Id.

The compelling national interests implicated by this case cry out for the Court to exercise its discretion and grant the writ. The fifth guideline dominates the analysis, as the District Court's ruling – denying Petitioner her right to present evidence that Mr. Clinton suppressed evidence, suborned perjury, and obstructed justice in this very case, and doing so solely to serve Mr. Clinton's political interest in pushing this case to trial before the OIC's investigation is concluded – indisputably raises new and important problems, and issues of law of first impression and national significance.

As the fifth guideline militates strongly in favor of granting relief, the fourth guideline is immaterial. Because "the fourth and fifth guidelines can seldom be consistent with each other," Bieter, 16 F.3d at 932 (quoting In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 306 n.16 (6th Cir. 1994) and citing Admiral Ins. Co. v. United States District Court, 881 is F.2d 1496, 1491 (9th Cir. 1989)), "review [by mandamus] may well be appropriate if either the fourth or the fifth guidelines are satisfied because the first two guidelines will presumably be satisfied as well." Bieter, 16 F.3d at 932 (emphasis supplied).

As predicted by the Court in Bieter, the first two guidelines do indeed join the fifth in pointing toward issuing the writ. Direct appeal from a final judgment after trial is not an adequate remedy precisely because of the unique nature and importance of this case. The unprecedented national attention drawn by this case will make it virtually impossible for the jury empaneled in the second trial on remand to disregard the verdict in the first trial. The jury in the second trial will undoubtedly have preconceptions, based on the verdict in the first trial, about the credibility of the litigants, and, so remand for retrial will be an inadequate remedy.

Moreover, Petitioner will be damaged in a way not correctable on appeal. Reversal, and remand for a second trial. puts Mrs. Jones and Mr. Clinton – and indeed the entire nation – through the trauma of another trial. This case is, after all, about the emotional trauma of a woman who was sexually assaulted by the most powerful government official in the State of Arkansas, and the trauma will be re-lived through the trial experience.

Finally, the third Bauman guideline is satisfied because (as explained in the following section) the ruling of the District Court is clearly erroneous as a matter of law. Mandamus may issue when "there is a clear abuse of discretion." Bieter, 16 F.3d at 932 (quoting In re Remington Arms Co., 952 F.2d 1029, 103 1 (8th Cir. 1991)). "Abuse of discretion occurs if the district court['s] . . . decision relies on erroneous legal conclusions." Bieter, 16 F.3d at 933 (quoting International Ass'n of Machinists v. Soo Line R.R. Co., 850 F.2d 368, 374 (8th Cir. 1988), cert. denied, 489 U.S. 1010 (1990)), And "a failure to consider relevant factors or to apply the proper legal standard constitutes ... an abuse of discretion." Bieter, 16 F.3d at 933 (quoting Stormy Clime Ltd v. ProGroup, Inc., 809 F.2d 971, 973-74 (2d Cir. 1987) (footnote omitted)). The next section demonstrates that the District Court failed to apply the correct legal standard by misinterpreting the Supreme Court's prior decision in this case, failed to consider relevant factors by excluding Petitioner's evidence sight unseen, and abused its discretion by terminating discovery which is an inappropriate response to a concurrent criminal investigation of a defendant in a civil action, all of which call for correction by mandamus.

   


B. THE UNDERPINNING FOR THE DISTRICT COURT'S ORDERS WAS ITS FLAWED BELIEF THAT IT MUST AFFORD MR. CLINTON A TRIAL ON REQUEST.

The District Court advanced three purported grounds for its termination of the Lewinsky Discovery. La reality, however, all of the grounds coalesce in one point – the District Court believes that a speedy resolution of this trial is in the interest of the Office of the Presidency. The District Court's erroneous belief is based on a misreading of the prior appellate decisions in this case; the District Court misapprehends that these decisions permit it to apply the Federal Rules of Civil Procedure extraordinarily to serve Mr. Clinton's needs.

The District Court cited Fed. R. Ev. 403 to claim that the Lewinsky Discovery should be inadmissible at trial. As its only basis for exclusion, the Court stated that "admitting any evidence of the Lewinsky matter would frustrate the timely resolution of this case and would undoubtedly cause undue expense and delay." MAR. 9 ORDER (Tab D) p.3. Pursuing the Lewinsky Discovery would not take long (two days of depositions) or be expensive, so the delay is not because of the nature of the discovery, but because Mr. Clinton is being investigated by the OIC. The OIC justifiably sought to protect the secrecy of its grand jury proceedings, but it was its request for a stay that would "frustrate the timely resolution of this case," not the discovery itself. Therefore although the Court cited Rule 403, this was a thinly-disguised justification for acceding to Mr. Clinton's purely political desire for a speedy trial. The Court did not perform a Rule 403 analysis, (how could it since the evidence had not yet been discovered?), and the District Court's decision cannot be justified under Rule 403. See, supra, pp. 5-6.

Likewise, the District Court's decision cannot be supported by the legitimate need to keep the OIC's grand jury proceedings secret. Petitioner has not contended that she should immediately be allowed to take the Lewinsky Discovery and did not challenge that a stay would be appropriate. But the OIC neither needed nor requested the harsher action of totally excluding relevant evidence sight unseen. Accordingly, the need for grand jury secrecy, although a real need, cannot support the District Court's orders.

In reality, the Court solely justified terminating the Lewinsky Discovery as a deference to the Office of the Presidency. The District Court explained its order in denying Petitioner's Motion for Reconsideration:

MAR. 9 ORDER (Tab D), p. 3.

The District Court's citation to the Supreme Court opinion in this case is misplaced; accordingly, it is necessary to review the framework and rationale of that opinion to understand how the District Court has seriously misinterpreted the Supreme Court's directive.

C. THE PRIOR DECISIONS IN THIS CASE DO NOT SUPPORT THE DISTRICT COURT'S ORDERS.

In December 1994, the District Court accepted Mr. Clinton's concern that this case "could conceivably hamper the President in conducting the duties of his office," and abated the case until Mr. Clinton was no longer President. 969 F. Supp. at 699. The concern, at that time, was that the President's duties were so important and his duties so critical that to divert the President's attention to the trial of this case would unnecessarily interfere with his duties and violate the separation of powers doctrine. 969 F. Supp. at 698-99.

This Court reversed, Jones v. Clinton, 72 F.3d 1354 (8th Cir. 1996), emphasizing that "the President is cloaked with none of the attributes of sovereign immunity" and "is subject to the same laws that apply to all other members of our society." 72 F.3d at 1358. Since Mrs. Jones was "constitutionally entitled to access to the courts and to the equal protection of the laws," Id. at 1354, this Court ruled that immunity was improper. This Court then distinguished the Office of the Presidency from the President himself by noting that the Supreme Court's holding in Fitzgerald v. Nixon, 457 U.S. 731 (1982), concerned the "impact of private civil suits arising out of the President's performance of his official duties on the future performance of those duties, not by whether the president qua individual citizen would have the time to be a defendant in a lawsuit " Id. at 1360 (emphasis added).

This Court was not unmindful of the President's duties and directed that the trial should be managed in a manner to not unreasonably interfere with the President's official duties. This Court emphasized that "what is needed ... [is] judicial case management sensitive to the burdens of the presidency and the demands of the President's schedule. The trial court has broad discretion to control the scheduling of events in matters on its docket." Id. at 1361, The Court emphasized that the District Court could manage the case "without creating scheduling conflicts that would thwart the President's performance of his official duties," Id., and that the discretion of the District Court should be exercised "to control scheduling and the like so as to protect the President's ability to fulfill his constitutional responsibilities." Id. at 1362.

In summary this Court concluded: "if the trial preliminaries or the trial itself become barriers to the effective performance of his official duties, Mr. Clinton's remedy is to pursue motions for rescheduling, additional time, or continuances," Id. at 1363, and mandamus would be appropriate to "either party" if the District Court failed to act properly in this manner. Id.

Likewise, the concurring opinion of Judge Beam stressed that "nothing prohibits the trial judge from halting or delaying or rescheduling any proposed action by any party at any time should she find that the duties of the presidency are even slightly imperiled." Id. at 1367 (Beam, J. concurring) (emphasis added). Therefore, the panel deciding this case determined that if the pursuit of the discovery or the trial of this case interfered with the President's official duties, the proper remedy would be to "halt" "delay" or "reschedule," not deny, truncate, and terminate as the District Court did.

Mr. Clinton. dissatisfied with this Court's ruling, appealed to the United States Supreme Court, which affirmed. Clinton v. Jones, 520 U.S. 137 L.E.2d, 117 S. Ct. 1636 (1997). The Supreme Court rejected any basis for immunity, finding that any such immunities "are grounded in 'the nature of the function performed, not the identity of the actor who performed it.' ".. 137 L. Ed.2d at 961, 117 S.Ct at 1644 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). The Supreme Court stated:


137 L.Ed.2d at 968-69, 117 S.Ct., at 1650-51.

The District Court concluded from this last statement that it had a duty speedily to resolve the trial to serve the Office of the Presidency; therefore, it preemptively expunged any evidence relating to Monica Lewinsky. Such a reading tears the quote from its context. The whole context of the Supreme Court's opinion was whether a total and complete stay of the case was appropriate. The Supreme Court specifically rejected the argument that discovery should be abated to serve the President's needs. Id. Finding also that a total stay was inappropriate, the Supreme Court echoed this Court's concern that the timing or scope of discovery may have to be set in a way not to interfere with the Office of the President. Therefore, the scope of the District Court's discretion is to halt, delay or suspend discovery on a temporary basis so as not to interfere with the Chief Executive's duties. The District Court did something much different.

D. MR. CLINTON'S DESIRE TO EXPEDITE THE TRIAL IS PURELY POLITICAL.

Mr. Clinton's motivation for a speedy trial has nothing to do with giving him more time to devote to the official duties of his office. Prior to the filing of the OIC's motion to stay discovery, Mr. Clinton filed a motion to expedite the trial. This motion was filed five days after the public disclosure of the OIC's investigation concerning Monica Lewinsky and attempts to obstruct justice in this case. In that motion, Mr. Clinton's counsel railed that "the President is being tarred in the media; gossip, innuendo and hearsay are being passed off as fact." MOTION TO EXPEDITE, (Tab H) p. 2. Mr. Caton complained that "normal journalist restraint has been abandoned by the broadcast media" and complained that plaintiff's counsel made "regular media appearances." Id. In short, Mr. Clinton grumbled that this case was affecting the public's perception of him. Paradoxically, instead of reurging the relief that he had requested from the District Court, this Court and the Supreme Court when this case was first filed, Mr. Clinton instead insisted that the trial should be expedited "so that Paula Jones' allegations can be tested under the rules of evidence in full public view, and the public can make its own credibility determinations." Id.. pp. 4-5. So, Mr. Clinton now insists, the earliest possible trial is what serves the Presidency's interests.

To the contrary, Mr. Clinton had argued in his Supreme Court brief that "Respondent's [Paula Jones'] interest in vindicating her asserted rights, and the judiciary's interest in providing a forum for vindicating such rights, are not significantly impaired by deferring this litigation." PETITIONER'S BRIEF TO SUPREME CT., p. 42. Mr. Clinton argued that deferring the case would further "the public interest in protecting the Presidency from disruption is at least as strong as, if not stronger than, the interests underlying these well-established doctrines." Id.. p. 9. Now, when damning evidence is about to come forward, Mr. Clinton changes his tune and argues that it would benefit the President to test Mrs. Jones, allegations immediately "in full public view." MOTION TO EXPEDITE, p. 3.

Mr. Clinton's motivation is clear – the discovery in this case has been embarrassing to him as an individual and it has seriously affected the person holding the Office of the Presidency. Mr. Clinton seeks not to spend less time on this matter, but to accelerate the trial, and have the trial dominate his time in a vain hope to clear his name. This is about politics, not the Office of the Presidency. Of course, the very reason he wishes to rush ahead to trial is to preclude Petitioner from presenting crucial evidence. The District Court's perceived need to maintain the trial schedule to suit Mr. Clinton is the undergirding for each reason the Court proffered in the orders challenged here, but this "need" is contrary to the Supreme Court's directives.

   


E. THERE IS NO JUSTIFICATION FOR DISALLOWING THE LEWINSKY DISCOVERY

Even if protection of Mr. Clinton was not the sole support for the District Court's orders, the other stated justifications cannot support denying the Lewinsky Discovery. The secrecy of the OIC's investigation is a real concern, but a limited stay of a party's discovery is all that is proper in face of the criminal investigation of her opponent. All – every single one – of the authorities cited by the OIC in its brief justified, at most, staying discovery.
That is, indeed, the appropriate response when there is danger that civil discovery will disrupt a criminal investigation or result in disclosure of matters properly kept secret pursuant to FED. R. CRIM. P.6(e). See, eg., Arden Way Assoc. v. Boesky, 660 F.Supp. 1494 (S.D.N.Y. 1987); United States v. One 1964 Cadillac Coupe DeVille, 141 F.R.D. 352 (S.D.N.Y. 1986); SEC v. Dresser Indus., 629 F.2d 1368, 1375 (D.C. Cir.), cert. denied, 449 U.S. 993 (1990); United States v. Mellon Bank, N.A., 545 F.2d $69 (3d Cir. 1976); United States v. Phillips, 580 F.Supp. 517 (N.D. 111. 1984). Not one case can be cited that a criminal investigation of a defendant is a basis permanently to deny discovery to a plaintiff. Yet that is what the District Court has done here. In fact, a stay of discovery until after appeals are resolved in a related criminal case has been found to be overly lengthy and struck down as abusive. McSurely v. McClellan, 426 F.2d 664 (D.C.Cir. 1970).

Even if it were possible in some remote context to deny discovery because of a criminal investigation, no rational basis can be argued here. The instant criminal investigation is the result of alleged activity by Mr. Clinton and his agents in this case. The OIC wants to find if Mr. Clinton suborned perjury, obstructed justice, and committed perjury in response to Petitioner's discovery. To deprive Mrs. Jones of key evidence because of Mr. Clinton's actions in this case would pervert justice and reward the wrongdoer.

Likewise, Rule 403 cannot be used to curtail the Lewinsky Discovery because the appropriate factors are not present here. Rule 403 permits exclusion of otherwise relevant evidence at trial if the evidence's "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EV. 403. The District Court, conceding the evidence had probative value, enunciated only one Rule 403 factor: undue delay and waste of time. But Rule 403 is concerned with prolonging the trial and wasting the Court's time in trial – not delaying the start of the trial. Rule 403 simply provides no sound basis to ever curtail discovery.

The District Court stated that the Lewinsky evidence "simply is not essential to the core issues in this case," MAR.9 ORDER (Tab D) p. 9 (emphasis in original), thereby imposing its own judgment as to the importance of the evidence. Evidence may very well be crucial but cannot said to be core, i.e. it is not the prima facie elements of the case. Here where the witnesses' credibility is so vital, evidence of similar events, especially when confirmable by third parties, is the key to swaying the jury. The District Court has thus improperly "ration[ed] discovery in accordance with [its] personal views of the 'importance' of the issues raised in the litigation." 8 Charles Alan Wright & Arthur Miller, FEDERAL PRACTICE AND PROCEDURE § 2008.1 (1996).

F. THE EVIDENCE MRS. JONES HAS BEEN BARRED FROM DISCOVERING OR PRESENTING AT TRIAL IS HIGHLY RELEVANT AND UNQUESTIONABLY ADMISSIBLE.

The Lewinsky Discovery seeks highly relevant and admissible evidence, especially in this case where the parties' and witnesses' credibility is probably the swing determinant. There are multiple independent grounds for admissibility of such evidence: 1) to establish Mr. Clinton's "custom or usage" under 42 U.S.C. section 1983; 2) to establish Mr. Clinton's intent to discriminate per FED. R. EV. 404(b); 3) to establish Mr. Clinton's habit under FED. R. EV. 406; 4) To prove other sexual contact by Mr. Clinton without effective consent admissible under FED. R. EV. 415; 5) to establish the grounds and proper amount of punitive damages; and 6) to establish that a party, or his agents, have attempted to conceal or suppress evidence, commit or suborn perjury, tamper with witnesses, or obstruct justice. This last category is especially relevant concerning the Lewinsky Discovery, because the OIC's inquiry and evidence that a party has is admissible against the wrongdoer and creates the inference that his entire case is weak and unfounded.

The Eighth Circuit has repeatedly enforced this black-letter rule that evidence of fabricated or suppressed testimony is admissible and highly probative:

Martin v. Norris, 82 F.3d 211, 216 (8th Cir. 1996). See also Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir. 1994) (unlawful destruction of documents in a race discrimination suit entitles the plaintiff to a presumption that the suppressed evidence would have bolstered her case); Hicks v. Gates Rubber Company, 833 F.2d 1406, 1418-19 (10th Cir. 1991) (in a sexual harassment suit under Title VII, destruction or suppression of documentary evidence by the defendant entitles the plaintiff to the benefit of a presumption that the suppressed evidence would have bolstered her case).

Judge Learned Hand explained the rule thus: "When a party is once found to be fabricating or suppressing documents, the natural, indeed, the inevitable conclusion is that he has something to conceal and is conscious of guilt." Warner Barnes & Co. v. Kokosai Kisen Kabushiti Kaisha, 102 F.2d 450, modified, 103 F.2d 430 (2d Cir. 1939). See also Erickson v. Newmar Corp., 87 F.3d 298, 304 (9th Cir. 1996)(witness tampering by defense counsel prevented a "fair trial"; witness tampering and perjury "subvert the entire judicial process"). See also McQueeney v. Wilmington Trust Co., 779 F.2d 916, 921 (3d Cir. 1985) (subornation of perjury by a party is "strong evidence" that the party's case is weak); United States v. Gonsalves, 668 F.2d 73, 75 (1st Cir. 1982) (evidence of threats to witnesses can be relevant to show consciousness of guilt; bribery of an adverse witness implies that the party has something specific to hide and to cover up, which implies a consciousness of guilt); Great Am. Ins. Co. v. Horab, 309 F.2d 262, 264 (8th Cir. 1962) (in a civil case, evidence that a litigant or his agent has attempted to influence or suppress a witness' testimony is an admission that his case is weak or unfounded).

Every noted commentator on the law of evidence supports this line of authority. See, e.g., 2 John Henry Wigmore, EVIDENCE IN TRIALS AT COMMON LAW § 278(2) (Chadbourne Rev. 1979); MCCORMICK ON EVIDENCE § 273 at 808-10 (3d ed. 1984).

Even apart from this powerful point of relevancy, the evidence put beyond Mrs. Jones' reach here is of other incidents of harassment by the same defendant, in the workplace, using his power as a public employer to reward women who provided sex to him. Not surprisingly, the District Court has repeatedly ruled in this very case that such evidence of other sexual predation by the defendant is discoverable. This oft-repeated ruling is clearly correct. The evidence of other harassment incidents is admissible (and obviously discoverable), under FED. R. EVID. 415, to show the defendant's propensity to engage in the conduct here at issue; under FED. R. EVID. 404(b), to show his intent and his plan. Indeed, this Court has made clear that it is reversible error to exclude such evidence. In Hawkins v. Hennepin Technical Center, 900 F.2d 153 (8th Cir. 1990) (exclusion of evidence of other incidents of harassment is reversible error in sex discrimination case). Also, the evidence is proper to establish the amount of punitive damages necessary to deter such conduct.

The District Court's assertion that the Lewinsky Discovery is tangential ignores its direct impact on Mr. Clinton's credibility, motives, intentions, and habits. By refusing to permit Petitioner to discover this evidence, Petitioner would not even be able to make a FED. R. EV. 103 offer of proof, therefore, mandamus is the only adequate remedy available.

G. THE OFFICE OF THE PRESIDENCY IS NOT SERVED BY THE DISTRICT COURT'S RULINGS.

The District Court's actions will not lessen the intrusion on Mr. Clinton's schedule. First the OIC's investigation will proceed unabated. Second, the trial will take substantial attention of Mr. Clinton, and may very well be for naught. Even if he somehow wins, he will have to face a retrial that is virtually certain.

FED. R. CIV. P. 60(b) expressly allows a party to reopen a judgment if, within one year after its entry, the party obtains evidence that the judgment was procured through "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." There can be no question that this standard would be met if the OIC's investigation reveals evidence that Mr. Clinton has obstructed justice or suborned perjury. Far less egregious behavior has justified reopening a case pursuant to Rule 60(b). See, e.g. Stridiron v. Stridiron, 699 F.2d 204 (3d Cir. 1983) (In an annulment action, husband's acts in falsely denying and failing to produce evidence of prior marriage was "abuse of the discovery process" justifying reopening case); Square Construction Co. v. Washington Metropolitan Area Transit Auth., 657 F.2d 68 (4th Cir. 1981) (proof of defendant's failure to produce requested documents met burden of "showing the fact of misconduct" affecting "heart of the fact finding process" requiring reversal and remand of District Court's denial of 60(b)(3) motion). Criminal conduct as is being investigated by the OIC, far exceeds the behavior necessary to reopen a judgment.

If the District Court's decision is left unreversed, therefore, the result sought to be avoided will in fact be even more unavoidable: rather than one trial, that can withstand appeal, there may well be two, stretched out over a number of months and engendering even more public attention and requiring more attention of Mr. Clinton and his aides.

CONCLUSION

Mrs. Jones seeks the following relief

1) A writ of mandamus or, in the alternative, a writ of prohibition directing the District Court to set aside its Orders dated January 29, 1998 and March 9, 1998, attached hereto;

2) An order directing that the trial not be scheduled until Petitioner can complete, in light of the OIC's investigation, the Lewinsky Discovery; and

3) Any other appropriate relief.


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