-Caveat Lector-
The court vindicated?
Washington Times
July 17, 2001
By Bruce Fein
Last May 27, the fourth anniversary of the United States Supreme Court's
politically controversial decision in Clinton vs. Jones (1997) denying a
presidential immunity from civil suits pivoting on non-official conduct
passed unnoticed.
That silence speaks volumes. It corroborates the high court's discrediting
of the parade of projected horribles conjured up by President William
Jefferson Clinton's advocates if immunity were denied.
The persistent myth peddled by some that Clinton vs. Jones caused President
Clinton's independent counsel and impeachment ordeals is fit more for
troubadours than for historians.
Paula Jones sued Mr. Clinton in federal district court before Judge Susan
Webber Wright on May 6, 1994, asserting various federal and state causes of
action. They all spun on Mr. Clinton's alleged sexual harassment of Miss
Jones in a hotel room during his Arkansas governorship. Mr. Clinton
insisted that neither a trial of the case nor discovery could ensue while
he occupied the White House because of an implied constitutional immunity.
(In contrast, members of the House and Senate command an express immunity
from suit for legislative activity under Article I, section 6).
Writing for a unanimous court in Jones, Justice John Paul Stevens lacerated
Mr. Clinton's constitutional defense. The president argued that his
schedule was too crowded to accommodate defending against civil litigation.
In other words, an accommodation would necessarily sabotage the discharge
of presidential duties and responsibilities. Justice Stevens scoffed. As
any commonplace observer knows, presidents routinely squander time on golf
courses, fishing, fund-raising appearances, and otherwise that could be
clipped if needed to defend an occasional lawsuit based on pre-presidential
conduct. And nothing in episodic testimony of presidents in criminal
investigations or prosecutions indicated a danger to presidential
functions.
Mr. Clinton also forecast a hurricane of politically motivated harassing
and frivolous litigation if the Jones suit proceeded. Justice Stevens again
voiced incredulity, noting the arsenal of legal sanctions against vexing
and mean-spirited lawsuits.
What Mr. Clinton conspicuously declined to argue was telling. He did not
even hint he might be "trapped" into apparent perjury or obstruction of
justice in the Jones case if compelled to testify under oath.
The Clinton vs. Jones critics have accused the high court of political
naivete. But the fourth anniversary proves the detractors deserve that
derision. Neither the former president nor any of his intimate lieutenants
have suggested that the litigating distraction impaired any presidential
decision or function. Moreover, the forecasted flood of Paula Jones copycat
suits against either President Clinton or his successor George W. Bush
proved as imaginary as the Loch Ness Monster.
Scourges of Clinton vs. Jones have thus resorted to the ill-conceived legal
maxim that if the law and facts are against you, confuse the issue. They
urge that Monicagate and the nation's impeachment crisis would have been
avoided if the Supreme Court had sustained Mr. Clinton's constitutional
immunity claim. But think of its monstrous implications: namely, that
presidents should enjoy constitutional immunity from a civil lawsuit
because their disdain for law and constitutional duties coupled with
vaulting ambitions will push them to criminality in attempting to win.
Enlightened law rewards virtue, not villainy. Furthermore, even Mr.
Clinton's most ardent defenders in Clinton vs. Jones did not imagine their
client would stoop to reprehensible conduct if the suit continued.
It might be said that the precedent was simply the first step of a
"right-wing" conspiracy to destroy Mr. Clinton's presidency. But the
indictment is counterfactual. The chief legal charges against the president
all proved substantial, not frivolous. Thus, he settled the Jones lawsuit
for a handsome sum; was impeached by the House of Representatives on two
counts, and 50 senators voted to convict on one charge; was held in
contempt of court and fined by Judge Wright for intentional lying and
attempting to obstruct justice; and, agreed to a suspension of his Arkansas
law license and conceded the falsity of some testimony in exchange for the
independent counsel's closure of an outstanding criminal investigation.
In sum, Mr. Clinton's misconduct, not the Clinton vs. Jones ruling, brought
on his multifront legal wars. No one speaks of a right-wing conspiracy
anymore, not even New York Sen. Hillary Rodham Clinton. History's
vindication of the Supreme Court rejection of President Clinton's immunity
claim is not assured. Napoleon quipped that history is largely a fable
mutually agreed upon, which his own Jekyll-and-Hyde treatment in the
evolution of French history texts substantiates. Ditto for the 1876 Battle
of the Little Bighorn. Examples are endless. Nothing is more contrary to
experience than John Milton's delusion in "Aeropagitica" that truth
invariably triumphs over falsehood on an even playing field. Truths must be
marketed like commodities to sustain themselves, and Supreme Court
decisions are no exception.
Bruce Fein is general counsel for the Center for Law and Accountability, a
public interest law group headquartered in Virginia.
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The Best Way To Destroy Enemies Is To Change Them To Friends
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