Jones v. Clinton Special Report
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At High Court, Clinton v. Jones Raises Historic Issues

By Joan Biskupic
Washington Post Staff Writer
Sunday, January 12 1997; Page A01

The allegations first surfaced at an Arkansas news conference held by a group of political conservatives, and at the time seemed like a tawdry, partisan attempt to discredit a Democratic president. But now, after new charges relating to Whitewater have risen and subsided, after investigations into Cabinet members and myriad accusations of wrongdoing have thundered through the White House, what seems to pose the most immediate and embarrassing legal threat to President Clinton is a woman named Paula Corbin Jones.

On Monday, the Supreme Court will take up her case, entering not only one of the most politically controversial disputes of the day but also among the most constitutionally weighty.

Jones has accused Clinton of seeking sex with her and of exposing himself to her in an Arkansas hotel room while he was governor in 1991 and she was a low-level state employee.

The justices will not hear the merits of those specific charges. But the issue before them will have historic significance for the White House: whether a sitting president can be required to stand trial in a civil case. The court is expected to rule before recessing this summer.

Clinton argues that to allow the case to go forward while he is in office would undermine the institution of the presidency. He wants temporary immunity from the lawsuit, alleging sexual harassment, conspiracy and defamation, until the year 2001, when he leaves office.

If the high court rules that the case can proceed while the president is in office, the lawsuit could dog Clinton through his second term, forcing him to answer embarrassing questions and potentially occupying much of his attention.

Yet ultimately, it is not Clinton's future but the institution of the presidency that will consume the high court and inform its decision. The precise legal question the justices face is whether a private civil damages lawsuit against a sitting president must be deferred until after he leaves office. Only one related case of presidential immunity has ever come to the court, and that 1982 dispute involved official presidential actions rather than the personal conduct of the president before he took office, as is the case with the Jones suit.

In oral arguments on Monday, the justices will hear a separation-of-powers dilemma of rare magnitude: May judges order a president to appear in court, and as a prelude to that, can he be asked to answer potentially incriminating questions as lawyers begin the process of interviewing witnesses?

"The last several decades have seen a number of sharp conflicts over the relative powers of the president and the government's other branches," said University of Illinois law professor Ronald Rotunda. But, as one of a group of law professors who have submitted a brief on Jones's behalf, Rotunda contends that what Clinton wants is "a new and troubling" kind of immunity – a purely personal exemption from civil litigation while in office.

Representing law professors on Clinton's side, University of Virginia law professor John C. Jeffries Jr. counters that "the solitary nature of the presidency" requires that he be free from "the diversion of energy and distractions from duty" that a civil lawsuit entails. A ruling against Clinton, this group contends, would allow any allegedly aggrieved citizen to dictate the president's time and preempt the nation's business by forcing him into court.

Jones filed her complaint in federal District Court in Arkansas, alleging that Clinton engaged in sexual harassment and assault, conspired with a state trooper to entice her into a sexual liaison, and defamed her character in subsequent remarks to the media. She is seeking $700,000 in compensatory and punitive damages.

In her complaint, Jones alleges that while she was working as a clerk at a state-sponsored conference in Little Rock almost six years ago, an Arkansas trooper summoned her to Clinton's hotel room where the then-governor asked her to perform oral sex on him. Jones says she refused. Clinton has denied making any sexual advances.

A district judge ruled in December 1994 that Clinton would not have to defend the case while in office, but that lawyers on both sides could begin interviewing witnesses as part of the legal "discovery" process. "This approach eliminates the problem that witnesses may die, disappear, become incapacitated, or become forgetful due to the passage of time," according to the ruling by Judge Susan Webber Wright.

Both Clinton and Jones appealed, with the president saying the entire case should be dismissed until he leaves office and that no discovery should begin, and Jones seeking to have the entire case proceed.

In January 1996, the 8th U.S. Circuit Court of Appeals ruled for Jones, declaring that she "is constitutionally entitled to access to the courts and to the equal protection of the laws." The appeals court stressed that "the president . . . is subject to the same laws that apply to all other members of our society."

Writing for the majority, Judge Pasco M. Bowman II said, "What is needed, we believe, to avoid a separation of powers problem is not immunity from suit for unofficial actions . . . but judicial case management sensitive to the burdens of the presidency and the demands of the president's schedule."

Clinton's case is being argued by Robert S. Bennett, a prominent Washington lawyer whom the president hired early on to serve as his counsel. In his appeal to the Supreme Court of the lower court ruling, Bennett points to the historic insulation of the president from the courts and to the importance of his office. "The president, unlike any other federal official, has the sole responsibility for an entire branch of the federal government," Bennett wrote in his legal brief. "For that reason, litigation against the individual who is serving as president unavoidably impinges on the constitutional responsibilities of the executive branch."

"Even one lawsuit," Bennett said, "would have the potential seriously to disrupt the president's conduct of his official duties."

But Jones's lawyer, Gilbert K. Davis, argues that temporary immunity would give every president a reprieve for potentially eight years against charges that he, for example, did not pay his personal debts, did not meet a contract, or otherwise injured someone.

"To create a blanket rule protecting a president from litigation relating to his unofficial acts would cross a line that this court has never crossed and that the framers [of the Constitution] never contemplated would be crossed," Davis asserts in Clinton v. Jones.

The case that will be the main point of reference for the justices Monday arose from the actions of A. Ernest Fitzgerald, a Defense Department whistleblower who sued President Richard M. Nixon and other administration officials when the government employee lost his job after going public with information about embarrassing department cost overruns.

By 5 to 4, the Supreme Court ruled that the president is absolutely immune from civil damages liability for his official acts. In an opinion by since-retired Justice Lewis F. Powell Jr., the majority found that such immunity is required by the president's unique position, the constitutional tradition of the separation of powers and the nation's history.

While a criminal case can be filed against a sitting president, the court was concerned that, if subjected to civil complaints, the president would become an easy target of burdensome lawsuits. "A rule of absolute immunity for the president will not leave the nation without sufficient protection against misconduct on the part of the chief executive," Powell wrote. "There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on presidential action that do not apply with equal force to other executive officials. The president is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter presidential abuses of office, as well as to make credible the threat of impeachment."

As would be expected, lawyers on both sides reason that Nixon v. Fitzgerald supports them. Clinton said the underlying logic supports the notion that presidents are at least entitled to a temporary deferral of private litigation. Jones's lawyers contend the case was intended only to shield presidents from lawsuits over official acts.

Paula Jones will not be there when her case goes before the high court Monday. More publicity, her lawyers say, is something their client doesn't need. Jones did pose for portrait photographs, however, for a Newsweek cover that appeared last week.

Her personal life has suffered considerably since Jones filed her suit, her lawyer has told the court in legal briefs. "She is subject to scurrilous comments in the media and minute examination of her past, is living in a controlled environment to prevent unwanted intrusion, and is exposed to intense interest and comments whenever she is recognized in public by all manner of people. It takes a person with great courage to sue someone with more influence, wealth, privilege, and power."

If anything, Davis said, Jones's experience would discourage lawsuits against the president.

© Copyright 1997 The Washington Post Company

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