January 7, 1997

Paula Jones Case Before High Court on Monday

The Supreme Court held in 1982 that a President of the United States is entitled to absolute immunity for his official, presidential acts. Immunity was discovered "rooted in the constitutional tradition of the separation of powers." Nixon v. Fitzgerald, 457 U.S. 731 (1982).

Now, in a case that will be argued before the Supreme Court this Monday, January 13, President Bill Clinton is seeking temporary immunity for acts he is alleged to have committed while Governor of Arkansas. His claim is extraordinary because the alleged acts are so far from being either official or presidential (or even defensible).

Paula Corbin Jones alleges that on May 8, 1991 Bill Clinton, then Governor of Arkansas, had an Arkansas state trooper bring her to a hotel room where the governor was waiting. At the time, Mrs. Jones was an employee of the State; Bill Clinton was her boss. 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, a veiled threat allegedly was made. In her suit, Mrs. Jones claims that Bill Clinton deprived her of her civil rights, in part through a conspiracy, and caused her severe emotional distress. She also alleges that she has been defamed. President Clinton denies all of Mrs. Jones's allegations.

Can the same "constitutional traditions" that protect official, presidential acts also immunize the following?

• Acts that cannot be official, presidential acts because they were alleged to have been committed before Mr. Clinton's election to the presidency.
• Acts that would not be official, presidential acts even if committed as alleged after Mr. Clinton's inauguration.
• Acts that allegedly were committed deliberately and willfully and not merely negligently (as are many private wrongs).
• Acts that allegedly denied to the plaintiff her federally-guaranteed civil rights, including her rights to due process of law and to the equal protection of the laws.
• Acts that allegedly were part of a conspiracy.
• Acts that, if true, would constitute an abuse of official power by a sitting governor.
• Acts that, if proved, may constitute a violation of Federal criminal law: Just today, January 7, the Department of Justice argued to the U.S. Supreme Court in the case of United States v. Lanier that a state judge could be criminally prosecuted under 18 U.S.C. 242 for sexual assaults that were committed while he was acting under color of state law.

The Lanier Case, Argued January 7, 1997

David W. Lanier was a judge of a local court in Tennessee. After a jury trial in Federal district court, he was convicted on two felony counts and five misdemeanor counts of violating 18 U.S.C. 242, which provides in part, "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned . . . or both. . . ." The felony counts were based on two rapes that involved bodily injury; the misdemeanor counts were based on sexual assaults on four women that involved behavior similar to that alleged by Paula Jones.

A divided 6th Circuit threw out the convictions, holding that 242 does not encompass sex crimes and that "[n]o matter how outrageous a defendant's action may be, he has to be charged with the appropriate offense created by Federal law." United States v. Lanier, 73 F.3d 1380, 1383 (6th Cir. 1996) (en banc), cert. granted, 116 S. Ct. 2522, case no. 95-1717. The Department of Justice is trying to convince the Supreme Court that 242 does indeed extend to sexual assaults. In its argument to the High Court, the Department of Justice said:

". . . The right to bodily integrity was recognized at common law, and has been recognized as protected by the Due Process Clause in a series of decisions of this Court dating back to at least [1952] [two cases cited]. Numerous decisions of the lower courts have elaborated upon that right to the point where it is clear beyond doubt that an intentional sexual assault by a state official, lacking any conceivable justification, is a deprivation of liberty without due process of law, and therefore may be prosecuted under Section 242 as a willful violation of rights protected by the Constitution." Brief for the United States at 17, United States v. Lanier, U.S. S. Ct. case no. 95-1717.

With respect to the relationship between Federal criminal law and Federal civil rights law, the Department of Justice made the following argument with respect to 42 U.S.C. 1983, which is the chief civil rights statute that Paula Jones has invoked:

"[T]here have long been reported cases arising under 42 U.S.C. 1983 establishing that unjustified assaults by state officials in non-custodial situations violated a liberty interest in bodily integrity protected by the Due Process Clause. [Four cases cited.] And there is 'nothing wrong with looking to a civil case brought under 42 U.S.C. 1983 for guidance as to the nature of the constitutional right whose alleged violation has been made the basis of [a] section 242 charge,' for the two Sections protect 'the same constitutional rights.' [Citation omitted.] Accordingly, respondent cannot claim to have been surprised that his . . . assaults . . . violated his victims' constitutional rights." Reply Brief for the United States at 13-14, United States v. Lanier.

Therefore, in addition to the moral and civil law implications of Mrs. Jones's allegations, we now learn that the alleged behavior may have constituted a Federal crime!