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'No Man in This Country . . . Is Above the Law' : Clinton: The threat of a flood of suits is contrived to save him embarrassment.

June 24, 1994|GEORGE T. CONWAY III | George T. Conway III is a lawyer in New York City.

The case of Paula Corbin Jones vs. William Jefferson Clinton is unique in many ways, but will be unique in at least one way that matters to the law. It appears that the President's high-powered lawyers--with the assistance of the Justice Department and at the behest of the White House counsel--will argue that he is, at least temporarily, immune from suit.

But this argument requires a huge stretch of the law. If it is the best defense he can find, Clinton will need all the legal firepower he can get.

There are two types of immunity for public officials from civil lawsuits. The first is "qualified immunity." Clinton is probably entitled to that here, as he is claimed to have harassed Jones, a state employee, while acting as governor of Arkansas. Qualified immunity won't do for Clinton and his lawyers, however, because it's just that--qualified. It is unavailable to defendants who knew or should have known that they were doing something unlawful. To find out whether qualified immunity applies requires depositions and a trial, the very things Clinton wants to avoid. Qualified immunity won't keep the Jones case off Court TV.

That's why Clinton's lawyers are looking for a legal "home run" ball: some kind of absolute immunity that derives from Clinton's position as President. In the 1982 case of Nixon vs. Fitzgerald, a bitterly divided Supreme Court recognized an "absolute presidential immunity from damages liability for acts within the 'outer perimeter' of (the President's) official responsibility." Yet even this is not enough to help Clinton. His alleged acts in the Jones case fall far outside his official duties--they took place before he was even elected.

So where does that leave Clinton? With a raw policy argument, unsupported by history or precedent. The historical materials are probably inconclusive, although one member of the Constitutional Convention observed that "far from being above the laws," the President "is amenable to them in his private character as a citizen." So Clinton's best hope lies in arguing that the reasoning of the Nixon case justifies the immunity he needs in the Jones case.

But it doesn't. The Nixon decision reasoned that, if faced with potential civil liability for official action, the President might "hesitate to exercise (his) discretion in a way 'injuriously (affecting) particular individuals' "--that he might behave timidly in carrying out his official duties if he could be sued for trying to carry them out. This danger is heightened by the sheer breadth of presidential duties and the effect of executive-branch decisions on countless people every day. As Nixon's lawyers argued, "any modern President comes into tangential contact with literally thousands of minor matters that reach his desk precisely because they have become controversial." Each could mean a lawsuit.

This reasoning doesn't help Clinton. It was compelling in the Nixon case for the very reason it is irrelevant in the Jones case: The first involved official, presidential acts; the second doesn't. A President's unofficial or non-presidential actions do not affect millions of people. The public has no interest in whether the President acts boldly or timidly in his personal affairs. And potential liability for non-presidential acts surely isn't going to intimidate presidents from carrying out their duties, particularly since presidents do enjoy absolute immunity for presidential acts.

Finally, despite Clinton's lawyers' efforts to paint a picture of proliferating process servers swarming across the White House lawn, the threat of a litigation boom involving personal conduct of presidents is contrived: Whatever else may be said of it, the Jones case is indisputably a historical anomaly.

Clinton's argument for immunity must boil down to an argument that the burden of a single case, involving simple allegations about an encounter lasting but a few minutes, threatens to paralyze the presidency and that the case should accordingly be delayed until he leaves office. This argument is also contrived: It is political embarrassment, not the burden of litigation, from which Clinton wants to be relieved. The litigation burden simply isn't that great, if the judge exercises proper control over it. Clinton's deposition, for example, could reasonably be restricted to a few hours or a day; the case is that simple. Sitting presidents have given depositions before in criminal cases--Clinton gave one to a special prosecutor in the Whitewater investigation recently.

In the end, Clinton's immunity argument is unacceptable because it would place presidents above the law. It would enable a President to take out a mortgage on a summer home, refuse to make payments and yet be immune from foreclosure for four or eight years. A President who owned a recreational speedboat could run someone over and postpone a suit by the victim's family, who would be left without redress for many years.

This smacks of the privilege of a sovereign or an autocrat--not a president of a democratic republic. A passage from a brief submitted by then-Rep. Albert Gore Jr. and other members of Congress in the Nixon case explains why Clinton's argument must fail:

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. . . . Incumbency does not relieve the President of the routine legal obligations that confine all citizens."

In a case involving his private conduct, a President should be treated like any private citizen. The rule of law requires no more--and no less.

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