"The entire presidency could turn on the occurrence of a trial like this" -White House Special Counsel Lloyd Cutler, May 24, on "The MacNeil/Lehrer NewsHour."
Wow. That really lets the cat out of the bag. This stuff about "temporal immunity" (as Cutler called it) is not, at bottom, about diverting President Bill Clinton from his weighty duties or wasting his time (although Cutler stressed that, too). It's about muffling potentially ruinous publicity.
That's why all the president's lawyers are cooking up arguments for putting Paula Corbin Jones' sexual-harassment lawsuit on ice for as long as seven years.
The president is worried that the American people will turn from him in disgust if they have their noses rubbed in the spectacle of Arkansas state troopers, who were the then-governor's bodyguards, swearing that Clinton regularly sent them out to procure women and had them arrange and conceal his extramarital encounters.
Worse, Trooper Danny Lee Ferguson, Clinton's co-defendant, has told reporters (and might testify) that the president telephoned him several times dangling possible federal jobs, perhaps in the hope of keeping him quiet, and that Clinton operatives pressured him not to tell the truth. (The White House denies this.)
Worse still would be the spectacle of the president undergoing cross-examination about whether he had ever had Ferguson bring Paula Jones to him in a hotel room (as Ferguson and Jones have both said), and if so, for what purpose. The president has said- through his private lawyer, Robert Bennett-that he "has no recollection of ever meeting this woman." Nobody I know believes that.
This is not to suggest that Jones' allegations of sexual harassment are true. My guess is that she's lying, at least about the more lurid details. Her story squares neither with her alleged remark to Ferguson (on leaving the hotel room) that she would like to be Clinton's steady girlfriend, nor with other accounts of the Clinton style of philandering.
Nor do I mean to deny that there may be a legal basis for staying at least part of Jones' lawsuit until President Clinton leaves office. Cutler and others, including Harvard University law Professor Laurence Tribe, make a reasonable case for deriving some such rule from the Constitution, subject to exceptions for plaintiffs who can show a need for immediate relief.
Such a principle might well justify deferring the trial sought by Jones, whose need for immediate relief is negated by her statement that she would donate any damage award to charity and her delay of nearly three years in filing. But contrary to Cutler's implication, Jones should be allowed to compel Ferguson-the key third-party witness in this "she said/he said" case-to give a sworn deposition, perhaps under seal, before his memory fades. (More on the legal analysis below.)
Even if such a qualified temporary immunity exists, however, the president would clearly be better off waiving it if he thought that the evidence concerning his conduct would bear public scrutiny. Instead, this president-whose campaign credo was, "Work hard and play by the rules"-is saying that the rules don't apply to him. He's not quite saying, I'm above the law," but he's coining close. He will (or should) pay a heavy political price for thus seeking, sanctuary in the majesty of his office. But consider his alternative: full discovery and a jury trial. The tales of Clinton's sexcapades-told to reporters by at least four troopers-allege a reckless course of conduct involving abuse of official power; they are far more damning to Clinton's image than anything Gennifer Flowers ever said. While the media have so far been hesitant to publicize such accounts, and the public is only dimly aware of and reluctant to credit them, there's nothing like sworn, formal testimony to focus attention.
So it's easy to see why the president is so desperate to stop this suit. It's less easy to believe that many of the Democratic lawyers who have rushed to opine that Clinton's temporary-immunity claim is solidly grounded in constitutional principle would have had the same view if this were 1982, and the plaintiff were (say) a black woman claiming that in 1979, Ronald Reagan had denied her a job on account of her race. "If this was Reagan, we would all be screaming bloody murder," notes one liberal Democratic constitutionalist.
But the presidency is bigger than Reagan and bigger than Clinton. And any private lawsuit against a sitting president raises two concerns of constitutional dimension: First, the president's time and energy are precious national resources that should not be unnecessarily consumed by litigation. Second, the dignity of the office should not lightly be dragged into the muck by use of court proceedings, especially when (as here) the lawsuit seems driven largely by a desire to generate scandalous publicity.
The first of these concerns helped undergird Nixon v. Fitzgerald, the 1982 decision in which the Supreme Court held by a 5-4 vote that, absent a specific act of Congress to the contrary, the Constitution immunizes the president absolutely and forever from civil liability for official acts.
The Court placed primary reliance on the danger that the president might be deterred by fear of liability from governing "fearlessly and impartially." This danger is not presented by a suit involving private or pre-presidential conduct. But the Court also stressed that "[b]ecause of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government." These risks are presented by lawsuits over private as well as official conduct.
There is also some (admittedly thin) precedent for the view that the Constitution bars use of litigation to trample unnecessarily the dignity of the presidency. That's why Ronald Reagan-as a former president, with plenty of time on his hands-was allowed to testify on videotape rather than being hauled into the courtroom during the Iran-Contra trial of former National Security Adviser John Poindexter.
These concerns about conserving the president's time and preserving the dignity of the office may justify a constitutional common-law rule-that is, one subject to modification by Congress, like Nixon v. Fitzgerald and like the emanations and penumbras of the dormant commerce clause-creating a presumption that private civil litigation against the president should be stayed until he leaves office, absent a showing that the plaintiff needs immediate relief.
A rule requiring the plaintiff to make such a showing would have the added benefit of screening out most politically motivated lawsuits. It would also be analogous to the traditional rules of equity, which require plaintiffs seeking injunctive relief to prove that they would otherwise be irreparably harmed.
Critics of the Clinton immunity claim contend that no such protection is needed because, given the unprecedented nature of the Jones suit, the visions of a barrage of time-consuming copycat suits are figments of the imaginations of the president's lawyers. But full adjudication of the Jones suit could consume many days of the president's time. And in this day and age, a rash of copycat suits is at least conceivable. If we are going to draw a line at some point, it makes sense to do it in this case. Would this require judicial creativity? Sure, but so did the recognition in United States v. Nixon (1974) of an executive privilege to refuse to honor a judicial subpoena absent a compelling need for evidence.
Even Cutler, however, did not argue for an absolute rule staying all civil litigation against the president. "The issue is one that has to be judged in each case, as to the needs of the plaintiff against the duties and burdens on the president of defending the case while he is in office," Cutler said. In this regard, he contrasted Jones' not-very-urgent claim with hypothetical cases "where immediate relief is required," such as a divorce or child-support suit. (Curious choice of hypotheticals, that.)
Cutler's logic can reasonably be extended (although he might disagree) to require an accommodation to plaintiffs like Jones, who may not need immediate relief but who do have an interest in preserving crucial evidence, by (among other things) proceeding with depositions of the most important third-party witnesses before their memories fade.
Under this approach, President Clinton would have a right to stay most aspects of the Jones lawsuit (including her claim against Ferguson), because she does not need immediate relief. But she might well show sufficient need to depose Ferguson. And the president would have difficulty showing that the time he would need to spend helping his lawyers prepare for a Ferguson deposition would be unduly burdensome.
The president should, however, have the option of insisting that any such deposition be kept under seal while he is in office. One reason is to avoid putting pressure on the president to spend time preparing a detailed rebuttal, including depositions of other witnesses. Another reason is to protect the dignity of the presidency from court-generated publicity.
Ferguson (who has been keeping mum of late) and the other troopers are, of course, free to tell their stories to the media or to anyone else who will listen. On the scale of constitutional values, the First Amendment clearly trumps the dignity of the presidency. But there is no First Amendment right to use the judicial process as a generator or amplifier of scandalous publicity about the president-even this singularly undignified president, who gladly tells us he wears briefs, not boxers.