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Harassment Suit Pivots on Narrow Issue of Immunity

Justices appear split on shielding president

If audience members at yesterday's packed Supreme Court hearing on the controversial Paula Jones case expected anything salacious during the hour of argument, they were disappointed. The session had nothing to do with whether then-Gov. Bill Clinton propositioned then-Arkansas employee Paula Jones in a hotel room in 1991, as she charges.

Rather, the case before the court, the questions from the nine justices, and the answers given by attorneys for President Clinton and Mrs. Jones dealt with a narrow legal point: May the president claim limited immunity from civil suit while he is in office - understanding that he may face a claim after his term ends?

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The nine justices grilled both attorneys so thoroughly that it was left unclear whether immunity would be granted. Several justices were skeptical of creating a constitutional ruling, saying they could not find the basis for it. Others felt the amount of intrusion on the president's time could be disruptive.

Practical questions ranged from how much time a trial would take to whether witnesses would forget the facts if a delay ensued. There were also questions on how to determine whether the White House was acting in good faith if it said the president was too busy.

"I just don't buy the time argument," said Justice Antonin Scalia. "We all see presidents riding horseback ... playing golf. It's hard to imagine them saying, 'I am absolutely too busy.'"

Solicitor General Walter Dellinger, representing Mr. Clinton, responded, "Presidents don't have a vacation. They have a change of scenery."

The attorney for Jones, Gilbert Davis, argued that under legal traditions dating to English common law and the creation of the US Constitution, the chief executive is not a monarch and must live under the rule of law just as any citizen. Jones deserves her day in court under the right of due process, he said.

The attorney for the president, Robert Bennett, argued that opening the executive branch to a potential flood of civil suits could cripple the office and thus harm the American people's interest. Mr. Bennett stated the executive branch is unique in that it is made up of one person. If a member of Congress should face suit, Bennett pointed out, the operation of the legislative branch would not be harmed. Yet tying up the president in what is not a criminal offense could harm an entire branch.

The president's case also hinged on whether the high court was willing to open up the executive branch to any judge that wanted to call the president when he or she deemed necessary. "What is unprecedented here is the notion of taking the president of the United States of America and subjecting that president to any state or county judge in the land," said Bennett.

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Several justices focused on how much the president would be burdened. Justice Anthony Kennedy pointed out a civil suit might be "far more extensive than a time chart would indicate," noting that such trials take emotional, intellectual, and other kinds of "substantive energies."

The Constitution does not mention the issue of civil immunity for the executive branch, so the high court is on new ground in deciding whether immunity should be granted.

Members of the court questioned whether all civil suits should be protected if the court granted blanket or limited immunity. Justice Sandra Day O'Connor asked whether a president would be protected from a child-custody case in which the president's spouse wanted their children. "Or suppose a president owns a great piece of land that is bubbling up with terrible poisons?" Justice O'Connor asked.

"Ultimately, the issue before the justices is about constitutional appearances and the etiquette of separation of powers," says Thomas Baker, dean of the Texas Tech University law school. "It is well established that one branch of the federal government may not intrude upon the central prerogatives of another branch."

JONES filed a sexual-harassment suit against Clinton in May 1994, after an unnamed Arkansas state trooper was quoted in The American Spectator asserting that a meeting took place between Clinton and a "Paula" in 1991.

Jones filed the suit two days before the three-year statute of limitations expired. The issue has bearing in that several lower-court judges pointed out that, in the words of one, "Obviously, Plaintiff Jones was in no rush to get her case to court" and hence could wait until Clinton's term as president ended. Jones seeks about $700,000 in damages, which she says she will donate to charity.

Since 1994, an Arkansas district court granted limited immunity to the president. But the Eighth US Court of Appeals said in a 2-to-1 ruling that the president was not a monarch, and that the case should go forward. Clinton appealed to the US Supreme Court, and on June 24, 1996, the high court granted the petition. So far, no findings or legal investigation into the alleged sexual-harassment charges have been made.

The most important legal precedent for Clinton v. Jones is a Supreme Court ruling in 1982 involving former President Richard Nixon.

In a much-disputed 5-to-4 ruling, the court set out full presidential immunity from suit for actions taken while a president is in office. Writing for the court in Nixon v. Fitzgerald, former Justice Lewis Powell stated, "Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks...."

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