Should The President Be Exposed?

Gary McDowell

February 1, 1997

Gladstone once described the American Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man". Later this year, Bill Clinton will find out if he agrees. Some time before the end of June, the Supreme Court of the United States will decide the case of William Jefferson Clinton v. Paula Corbin Jones. The oral arguments were heard on January 13. The issue is whether the President is immune from civil lawsuits while in office.

This suit is one of the most salacious ever to involve a President, either before or after leaving office. Mrs. Jones has claimed that while an employee of the State of Arkansas, she was spied by the then Governor, approached by his bodyguard who informed her that the Governor said she "made his knees knock", and escorted to a room at the Excelsior Hotel by the dutiful drone. What happened next is what is to be settled in the sexual harassment suit.

According to Mrs. Jones, Mr. Clinton groped and fondled her, and finally dropped his trousers, exposed himself and invited her to "kiss it". She declined, she claims, and left the room. Mr. Clinton’s only response to the allegations has been that he does not remember doing such things. She insists she can prove it in court by describing certain "distinguishing marks" on the President’s private parts. If the case goes ahead, it will eclipse even the O.J. Simpson trial as a cultural landmark.

Unfortunately for the prurient, the Supreme Court is not concerned with those interesting details. Its focus is on whether the Constitution provides presidential immunity from civil suits. Clinton argues that a President besieged by lawsuits would be unable to carry out the duties of his office. Yet Mrs. Jones’s competing claim that plaintiffs deserve their day in court, regardless of who the defendant might be, is also well rooted in the American legal tradition. Justice delayed may indeed be justice denied.

The Supreme Court might come down either way. Even though the justices are political creatures, appointed by the President and approved by the Senate, their life tenure means they are beholden to no one. As President Harry Truman once put it, "once you put a man on the court, he ceases to be your friend".

Several of the justices have well-known views on the importance of an independent and energetic executive within the Constitution’s scheme of separated powers. Ironically, they are the justices appointed by the last two Republican Presidents, Reagan and Bush. Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas may well conclude that the inherent constitutional powers of the presidency demand that Mrs. Jones’s lawsuit be postponed. If these three stick together, as they often do, and are able to persuade the two other Reagan-appointed Associate Justices, then the President will prevail with a 5-4 decision.

However, there are precedents that might channel the court toward Paula Jones’s claim. The most striking is the Watergate decision, United States v. Nixon, which demanded the tapes be turned over to the Special Prosecutor, and led ultimately to Nixon’s resignation. The issue then was whether a President’s communications in the Oval Office are protected under the doctrine of executive privilege. Like the doctrine of presidential immunity being claimed by Clinton, executive privilege is a power of the presidency inferred from the constitutional design but not explicit in the Constitution.

In the Nixon case, the Court held that while executive privilege was a reasonable inference, it was not absolute and did not apply in the case at hand. The demands of the judicial process in a criminal trial took precedence over general claims of presidential privilege. It is no great leap from that logic to the issues raised by Clinton v. Jones. The Court may once again hold that "the legitimate claims of the judicial process . . . outweigh presidential privilege". No doubt many of Mrs. Jones’s conservative supporters would delight in the symbolism of Clinton being hit with the very club that felled Nixon.

However, there is a twist. Of those who were on the Supreme Court in 1974, only Chief Justice Rehnquist remains. And in the Nixon case, he excused himself because he had previously served as Assistant Attorney-General for legal counsel in the first Nixon Administration.

The President has a great deal to worry about, however Clinton v. Jones is decided. That is but one of many ethical troubles hanging over the White House. Judge Kenneth Starr, the independent counsel investigating Whitewater (which now includes several other areas of inquiry), is likely to begin issuing new indictments at any moment, possibly reaching as high as the First Lady, Hillary Clinton. Moreover, the allegations of campaign finance irregularities look increasingly serious. And even if the Supreme Court should agree that the President is entitled to immunity from lawsuits while in office, Mrs. Jones is not going to go away: she will eventually have her day in court and the world will finally have a better idea of what took place in the Excelsior Hotel back in 1991.

The more enduring question, however, and the most important issue at stake in Clinton v. Jones, is whether the presidency will be constitutionally stronger or weaker as a result of the case. The answer could affect the exercise of presidential power and leadership both at home and abroad.

Gary McDowell is the Director of the Insitute of United States Studies at the University of London. This article first appeared in the Times of London.