January 27, 1997

Today at the Supreme Court

"[T]he Attorney General must provide legal justifications for the continual, uninterrupted flow of power to the President. . . . [She] must perform the contradictory role of simultaneously being the impartial guardian of the basic law and partisan advocate for presidential initiatives that ultimately transfer power from the legislature to the executive branch of government." --Author Martin S. Sheffer

The Allegations. The President of the United States has been sued by Paula Corbin Jones for acts he is alleged to have committed while Governor of Arkansas. She alleges that the governor touched her in a sexually provocative way, exposed himself, and asked her to perform a sexual act; when she refused, he made a veiled threat. Her lawsuit alleges that Bill Clinton deprived her of her civil rights, caused her severe emotional distress, and defamed her. President Clinton denies all of Mrs. Jones's allegations.

The Delay. There has been no progress on the principal case and its factual questions because the President (through private legal counsel) has maintained that he need not answer Mrs. Jones's complaint because the Constitution does not allow him to be sued during his term of office. Neither the court of appeals, Jones v. Clinton, 72 F.3d 1354 (8th Cir. 1996), nor the district court, Jones v. Clinton, 869 F. Supp. 690 (E.D. Ark. 1994), has agreed with the President. Today, Monday, January 13, the Supreme Court of the United States hears the case.

DoJ Comes To Its Boss's Aid. The Department of Justice has weighed in on the side of the President even though the Federal Government is not a party to this lawsuit. There is something troubling about the Department's participation -- apart, that is, from the Attorney General coming to her boss's aid in a private, civil lawsuit and bringing with her the enormous resources of the world's largest law firm. More troubling than this are the Department's legal positions.

Precedent for Immunizing Official, Presidential Acts -- But No Others. The actual text of the Constitution does not grant immunity to a president, but the Supreme Court has declared that a president is absolutely immune from damages liability for his official, presidential acts. Nixon v. Fitzgerald, 457 U.S. 731 (1982). There is, however, no precedent for granting immunity to a president for alleged acts that (1) cannot be official, presidential acts because they were committed before Mr. Clinton's election to the presidency, (2) would not be official, presidential acts even if committed as alleged after Mr. Clinton's inauguration, (3) denied to the plaintiff, in part through a conspiracy, her federally-guaranteed civil rights, including her rights to due process of law and to the equal protection of the laws, (4) would constitute an abuse of official power by a sitting governor, and (5) may constitute a violation of Federal criminal law.

Does It Matter What Is Written in the Constitution? There are a couple of reasons that Congress should care that public funds are being used (in a private lawsuit) to aggrandize the presidency, but one of the more important reasons surely is this: The President's public lawyers are trying to persuade the courts to create a wide immunity for the President that the Framers neglected to write into the Constitution while at the same time they are successfully urging the courts to narrow the express immunity for members of Congress which the Framers did indeed write into the Speech or Debate Clause.

DoJ Helping Narrow the "Speech or Debate" Clause. The Constitution says in Article I, section 6, "[F]or any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." The clause has its roots in the history of conflict between Commons and kings, and in the United States it has been a bulwark for the independence and integrity of Congress. Nevertheless, the United States Department of Justice is taking the position that the Speech or Debate Clause provides less protection for a Representative than the vaporous "presidential immunity rule" does for the President. In United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994), DoJ argued successfully that, in a civil action brought under the financial disclosure provisions of the Ethics in Government Act, the Speech or Debate Clause did not immunize statements made by a Congressman in testimony before a House committee.

DoJ Helping Create and Expand Unwritten Powers of Presidency While Shrinking Textual Prerogatives of Congress. The Department of Justice holds the following two views simultaneously: The Constitution of the United States, with its Speech or Debate Clause, does not shield a sitting member of Congress from civil liability for statements he made in open testimony before a committee of the House of Representatives. That same Constitution contains an unwritten (and as yet undiscovered) rule that prohibits a President from answering a civil complaint that alleges serious pre-presidential wrongdoing.

The Department's positions are more than incongruous, they are a threat to the powers and immunities which the Constitution has apportioned among the branches of the National Government. Members of Congress on both sides of the aisle should vigorously oppose them.