The Supreme Court justices ended a frustrating hourlong argument Monday in the case of Bill Clinton vs. Paula Jones sounding divided and uncertain over whether her sexual harassment lawsuit should go forward while he remains in office.
The case poses novel and difficult legal questions: Should the president be entirely immune from all civil suits while in office or forced to answer to all such suits, just like any other citizen? Or should the rule be somewhere in between, perhaps allowing some pretrial depositions but blocking an actual trial?
Adopting either extreme position - total immunity or none - obviously troubled the justices, yet the lawyers for each side offered little help in laying out a reasonable middle ground.
Wednesday, the high court will meet privately to discuss the case, vote on the outcome and begin the task of writing a majority opinion.
The ruling, due by the end of June, is especially hard to forecast, but the most likely outcome remains some sort of compromise.
On the one hand, a majority of the justices seemed to indicate they did not want to give a trial judge the power to order the president to appear in a courtroom or to sit for a deposition. On the other hand, they did not see why some “third-party witnesses,” such as the Arkansas state troopers in this case, could not be ordered to give depositions under oath.
Such an approach, if adopted by the court, could prove politically damaging for Clinton.
Lawyers for Jones, the former Arkansas state employee who alleges that then-Gov. Clinton crudely propositioned her, want to take testimony from witnesses who were in the Little Rock hotel that day in May 1991.
They include state trooper Danny Ferguson, who is said to have arrived with Clinton and later escorted the young woman to a private room on an upper floor.
They also want to take statements from other troopers who traveled with Clinton while he was governor.
Since 1994, Jones’ attorneys have been barred from taking depositions, gathering hotel records or undertaking any other “discovery” in the case. Lawyers for Clinton, claiming a “temporary immunity” for the chief executive, have argued no suit against a president may proceed until he leaves office.
“We’re saying, ‘Let’s give Ms. Jones her day in court, just not now,” Robert S. Bennett, Clinton’s private attorney, told the justices. “The president of the United States should not be taken away from his constitutional duties” because of a lawsuit, he said.
Justice Sandra Day O’Connor wondered if this immunity applied to all lawsuits.
“Suppose it was a child custody case,” she said. If a future president and spouse had separated, could a child be told to wait for four years before a court could decide which parent would have a custody?
“Or suppose the president owns a great parcel of land. It is bubbling up with poison and the neighbors are upset,” she continued. Can the chief executive say he is immune to answering an environmental complaint?
Bennett conceded that in an “exceptional circumstance,” the president could be forced to respond. He struggled, however, to define why those cases were exceptional and this one was not.
“The public interest is in having the president unimpaired to perform his duties,” contended U.S. Solicitor Gen. Walter Dellinger, joining the argument on Clinton’s behalf. “We believe any civil litigation involving the president should be postponed.”
“I must say I don’t find that very persuasive,” replied Justice Antonin Scalia. “We see the president riding on horses, chopping firewood, playing golf. … The notion that he doesn’t have a minute to spare is not credible.”
Even if the president is too busy to appear for a deposition or a trial, why should the depositions of witnesses be delayed, asked Justice Stephen Breyer. “How would that affect the operation of the presidency,” he asked.
There is a problem of “fading memories” if the lawsuit is delayed for too long, Chief Justice William H. Rehnquist noted.
After Clinton’s two lawyers were questioned for 30 minutes, lawyer Gilbert K. Davis stepped to the lectern to present Jones’ arguments and also was peppered by questions.
Suppose the president is told to appear in court, but is scheduled to go to a North Atlantic Treaty Organization meeting in Europe the same day, Scalia asked.
Davis conceded that the president should be excused if he says the court hearing would cause “an actual or imminent interference with his presidential duties.”
Who is to decide when there is such an interference: the trial judge or the president? Scalia continued.
The president must “make the assertion” he is too busy, he replied.
Breyer wondered whether the same applied to depositions by others. Suppose dozens of depositions are taken, and the statements raise questions about the president’s behavior and veracity.
“Every statement is in the newspaper. And he says, ‘I don’t have time to respond (to media questions) to all this. It is interfering with my duties’,” Breyer continued. In that instance, could the president’s lawyer stop the proceedings? he asked.
Yes, Davis replied, so long as the president made a “good faith assertion” that even depositions submitted by others created situations that occupied too much of his time.
Several justices looked perplexed by that answer.
Jones filed her lawsuit in May 1994, but it has been frozen from proceeding by Clinton’s immunity claim.
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