JONES v. CLINTON
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Clinton to Say He Did Not Harass Jones

By Peter Baker and Ruth Marcus
Washington Post Staff Writers
Saturday, January 17, 1998; Page A01

President Clinton intends to deny under oath today that he sexually harassed Paula Jones but will not dispute that his former bodyguard escorted her to Clinton's Little Rock hotel suite in 1991, according to sources familiar with the case.

As he provides his version of events in person for the first time in Jones's sensational lawsuit, Clinton plans to repeat his assertion that he does not remember meeting her when he was Arkansas governor and she was a state clerk, sources said. However, they said, the president will not contest State Trooper Danny Ferguson's account of bringing her to his suite, conceding he may have met with her alone.

By taking that approach, the president's legal team positions itself to offer an alternative explanation of what happened at the Excelsior Hotel – that Jones initiated any encounter out of sexual interest in Clinton rather than being the unwilling recipient of his lewd advances, as she contends.

In his deposition last month, Ferguson, a codefendant in the lawsuit, said Jones told him beforehand that Clinton was "good looking" and, after their meeting, sought the trooper out to offer to be "the governor's girlfriend."

But in essentially vouching for Ferguson's credibility, Clinton lends support to a witness with intimate knowledge of his off-duty activities through most of his governorship, something that could be valuable to Jones's lawyers as they try to prove a pattern of illicit behavior.

Clinton's deposition today at his lawyer's office two blocks from the White House will mark an inglorious moment in U.S. history: the first time a president has been interviewed under oath as a defendant in a court case while in office.

It also will bring the main protagonists together for the first time since the lawsuit was filed in federal court in Little Rock in May 1994. Jones, accompanied by her husband, Steve, flew to Washington last evening and plans to attend along with her lawyers, who will question the president. Hillary Rodham Clinton does not plan to be present, according to White House officials.

The closed-door session caps months of evidence gathering and the case appears headed for a public trial slated for May 27. With settlement talks abandoned, even Clinton said this week a trial is "probably" inevitable.

Jones maintains she went with Ferguson to meet Clinton thinking it might lead to job opportunities. But once she arrived, she said, Clinton told her, "I love your curves," tried to touch and kiss her, exposed himself and asked for oral sex. She said she refused and fled shaken, an account supported in part by friends in whom she later confided.

While videotaped for possible use at the trial, the deposition for now will remain shielded from public disclosure by a gag order imposed by U.S. District Judge Susan Webber Wright. Because the questioning is certain to delve into a variety of sensitive areas – including allegations of past sexual indiscretions by Clinton – Wright also flew to Washington to referee disputes over what inquiries will be allowed. If the case goes to trial, Clinton could elect to take the stand or – in deference to his role as president – appear only through the videotaped deposition.

The White House has tried without success to minimize public attention to what it sees as an unfortunate event. At first, the questioning was scheduled secretly to take place at the executive mansion on a Saturday when few reporters would be around. After the date leaked, Clinton's team moved the location so that Jones would not be photographed entering the White House. And aides said Clinton will be taken into the law office of Robert S. Bennett through an underground garage and therefore not exposed to news media cameras.

The Supreme Court last year unanimously rejected Clinton's claim that he should be immune from suit while serving in office. Recent attempts to head off the confrontation through settlement faltered after Clinton rejected the Jones camp's request for about $2 million and an apology. Several people close to the case believe that chances for settlement will diminish even further after the deposition because the president already will have been forced to discuss matters he wanted to avoid.

Pretrial discovery ends Jan. 31, although it is possible it may be extended. Among the witnesses who have been interviewed under oath so far are women who have claimed to have had sexual relationships with Clinton, including Gennifer Flowers, and men who have claimed to have had sexual relationships with Jones.

Wright – a GOP appointee who once was a student of Clinton's during his brief stint as a law professor – has already rejected Clinton's efforts to have the case dismissed. Clinton's lawyers had argued that, even assuming Jones's allegations were true, they did not constitute a legal cause of action.

In a ruling last August, the judge threw out a claim that Jones was defamed after coming forward with her allegations by statements branding her as a liar. But Wright allowed the case to go forward on the theory that Clinton violated Jones's civil rights by sexually harassing her and on a state law claim of intentional infliction of emotional distress.

The lawyers will have another shot at getting rid of the case by filing a motion for summary judgment once discovery is completed. But legal experts said that effort was unlikely to succeed based on Wright's August ruling and the fact that the case turns on disputed issues of fact. "This is a classic credibility case and credibility is an issue for the jury," said Zachary Fasman, a Washington lawyer who defends sexual harassment cases.

Jones's complaint came too late for her to employ the usual basis of a sexual harassment claim, Title VII, the federal job bias law that prohibits discrimination on the basis of sex.

Instead, she turned to another civil rights statute, known as Section 1983, which prohibits people acting "under color of state law" – in this case a governor – from violating an individual's right to equal protection of the law. The courts have interpreted the Constitution's Equal Protection Clause to include protection against sexual harassment.

As a legal matter, Jones faces a slightly higher hurdle in pursuing a Section 1983 claim than if her case were a straightforward Title VII claim because she has to show that Clinton intended to harass Jones because of her gender.

In trying to show that alleged conduct amounted to sexual harassment under the law, Jones has two available avenues. First, she can try to prove what is known as "quid pro quo sexual harassment"; in other words, that her refusal to submit to Clinton's alleged sexual advances resulted in a "tangible job detriment."

After she rebuffed Clinton, Jones said, he reminded her of his influence with her boss, agency director David Harrington, saying, "If you get in trouble for leaving work, have Dave call me immediately and I'll take care of it." She also said she was "treated in a hostile and rude manner" by supervisors and, after a maternity leave, was transferred to a less desirable position and denied merit raises.

Wright said the case could go forward on that claim but several experts in sexual harassment law said that approach appeared weak.

However, Jones can also claim that Clinton's alleged actions amounted to illegal sexual harassment because they created a "hostile work environment." Courts have held that even a one-time event, if it is extreme enough, can support a valid sexual harassment claim. The Supreme Court has said the conduct must be "sufficiently severe or pervasive" that it would create a "hostile or abusive work environment for a reasonable person."

A month after their hotel encounter, Jones said Ferguson told her Clinton wanted her phone number, though the trooper has said she offered it unsolicited. On another occasion, Jones said, she was "accosted" by Clinton in the state capitol rotunda when he put his arm around her, pulled her "tightly to his body" and told his bodyguard, "Don't we make a beautiful couple – beauty and the beast?"

Wright said the alleged hotel encounter along with the later events could support a hostile work environment claim.

Lawyers who represent plaintiffs and defendants in sexual harassment cases said it was impossible at this stage to assess who might ultimately prevail before a jury.

"If pushed, I would bet 51 to 49 that Clinton will not be shown to have committed an actionable offense but it's very, very close," said Lawrence Lorber, who represents sexual harassment defendants.

David Kadue, who also works on the defense side, noted that unanimous juries are required in federal civil cases. "If I were betting, my money would be on a hung jury, which would require retrial," he said. "All you need is to have one true believer on either side."

© Copyright 1998 The Washington Post Company

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