News Analysis: From Nixon to ClintonBy Joan Biskupic
Washington Post Staff Writer
Sunday, June 1, 1997; Page C01
The case riveted the nation. The president was trying to avoid a trial, and he had taken his constitutional argument all the way to the Supreme Court. The rebuff was unanimous, with the president's own appointees voting against him. The president of the United States, the justices said, is not beyond the law's reach.
That was the court's answer to the Nixon tapes case in 1974 and to the Paula Corbin Jones case last week.
While the two rulings have important differences, they represent the modern legacy of judicial limits on presidential power. The sensational lawsuit brought by Jones against Clinton for alleged misconduct while he was Arkansas governor and she was a low-level state employee now becomes part of a small but mighty set of decisions curtailing the prerogatives of the nation's chief executive. The underlying message is one that ratifies a fundamental premise of American democracy: Despite the president's extraordinary responsibility, he is ultimately an ordinary citizen.
"The notion that the president would be like a king was implicitly rejected in our founding documents," says Harvard law professor Laurence H. Tribe. "Complaints about royal prerogatives helped to fuel the revolution. The concern was that the King of England was deemed something more than an ordinary human, that his mandate came from God."
With unusual unanimity, the court rejected Clinton's claim that, while in office, he is immune from being sued for personal conduct. The ruling allows Jones's allegations that Clinton sought sexual favors from her in a Little Rock hotel room to move forward.
"This opinion is very much in the post-Watergate, post-Vietnam tradition of extremely strong skepticism of the so-called imperial presidency," observed Yale University law professor Akhil Amar.
"It's in that same particular vein of the Nixon tapes case: Even the president comes under the law. We have the right to every person's evidence," said University of Illinois law professor Ronald Rotunda.
The Clinton administration has aggressively asserted various special prerogatives over the years, for example, claiming executive privilege in refusing to give Congress documents on the firings at the White House travel office. In some instances the White House relented and a compromise was reached, reflecting how most privilege disputes tend to be resolved at a political level. In the past, privilege cases have tended to be about matters of national security. The Nixon tapes case still stands as the only modern instance of a president pushing the matter of privilege to the Supreme Court.
Yet another test of the strength of executive branch prerogatives could come in a pending case involving notes taken by White House lawyers of conversations with first lady Hillary Rodham Clinton. Whitewater independent counsel Kenneth W. Starr is seeking these notes. Both sides have cited the Nixon tapes case, with Starr saying the ruling means the notes must be surrendered and White House lawyers saying it does not. The Paula Jones ruling focusing on presidential immunity, rather than a privilege to withhold information offers scant clue on how the justices might ultimately resolve the notes case.
What is clear, however, is that the Supreme Court is prepared to question and even take a tough line on presidential prerogatives.
In the tapes episode 23 years ago, Watergate prosecutors wanted to use recorded conversations between the president and his aides as evidence in a criminal trial of former NIxon aides charged with attempting to obstruct justice. The aides were accused of covering up the break-in at the Democratic National Committee headquarters in the Watergate building. Nixon claimed executive privilege to avoid relinquishing the recordings.
But the court said the president's broad assertion of privilege must yield to the need for evidence in a criminal trial. It ordered Nixon to provide the subpoenaed material, and he resigned shortly after.
In the large scheme of things, a president is more likely to claim a privilege to withhold records, documents or conversations than he is to assert immunity from lawsuit for his personal actions. (The Jones-Clinton case is the first of its kind to reach the courts.) So the Nixon ruling was much more momentous constitutionally and politically.
Nonetheless, the two cases effectively pitted the chief executive against the judiciary. In the court's ruling in Clinton v. Jones, Justice John Paul Stevens referred to United States v. Nixon and said, "[I]t is . . . settled that the president is subject to judicial process in appropriate circumstances." The court rejected Clinton's contention that a 1982 court case finding that presidents are immune from civil damages lawsuits for their official actions should cover personal conduct as well.
While it is unlikely that the ruling would undercut the central power of the presidency, Justice Stephen G. Breyer raised serious concerns in a separate opinion about whether the ruling could lead to interference by the courts in executive business and diminish the president's ability to control his time and energy.
In both the tapes and Jones cases, Tribe noted, the justices showed "they are not blind to the fact that the presidency is a unique office with unique responsibilities. But in both instances, they said the president is answerable to the law, [a view] that is much more predictable in the post-Watergate era than before."
Indeed, the court last week showed it was aware of the need to shield the president to some extent. "The high respect that is owed to the office of the chief executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding," the court noted. The ruling said a trial judge still must be sensitive to the president's schedule.
Along those lines, the court in Jones referred to Justice Robert H. Jackson's description of the presidency in the court's first great reversal of executive power this century, a 1952 case rebuffing presidential war powers and Harry S Truman's seizure of the nation's steel mills. Executive authority, Jackson said, is concentrated "in a single head in whose choice the whole nation has a part, making him the focus of public hopes and expectations."
The court has taken its own standing into account as well, as evidenced by the unanimous decision. Past cases make clear that the justices realize the importance of speaking with one voice in highly politicized cases affecting the balance of powers as unanimity no doubt raises public confidence in the ruling.
The justices's internal papers from United States v. Nixon reveal how vigorously they worked to avoid dissent during the Watergate crisis and a time of great constitutional uncertainty. The vote was 8-0. (William H. Rehnquist did not participate because he had previously worked for one of the White House aides.)
Similarly, the justices must have seen the fractious Jones matter the same way. During oral arguments last January, the justices had appeared quite divided over who should win and on what basis. The 9-0 vote was startling when Stevens announced it from the bench.
Individual justices decided it was in the great national interest to compromise. In 1974, three Nixon appointees (Chief Justice Warren Burger, Harry Blackmun and Lewis F. Powell Jr.) voted against the president. In the Jones case, Clinton appointees (Breyer and Ruth Bader Ginsburg) similarly overcame any political allegiance toward their patron. The rare challenges to presidential prerogatives demand a rare closing of ranks.
Joan Biskupic covers the Supreme Court for The Washington Post.
© Copyright 1997 The Washington Post Company