Principle and the Paula Problem


CHARLESTON, SOUTH CAROLINA — By this time, everyone who reads the newspapers knows about the lawsuit. As we choose up sides in Jones v. Clinton, please count me squarely on the president's side. A basic principle of our national government is at stake.

For the record: Paula Jones has sued Bill Clinton. In May 1991 he was governor of Arkansas. She was a low-level bureaucrat, 24 years old. She alleges that he lured her to his hotel room in Little Rock. There, she says, he asked for oral sex but she refused.

She suppressed her shock and outrage. Meanwhile, the governor became president. Four months ago, an article in The American Spectator provoked her to action. Missing a deadline to file a suit for sexual harassment, she sued instead under Section 1983 of a civil-rights act adopted more than 100 years ago.

What next? The suit should be dismissed ''without prejudice,'' under a court order forbidding Mrs. Jones to refile her action until a time when the defendant is no longer president.

Our national government rests on two foundation stones. One of them is the principle of federalism, embodied in the 10th Amendment. The other is the principle of separation of powers, embodied in the Constitution as a whole. Jones v. Clinton has nothing to do with federalism, but it has everything to do with separation of powers.

I venture no opinion on the merits of Mrs. Jones' case. She appears to have some wobbly corroboration from friends she spoke to at the time. This is more corroboration than Anita Hill could produce in her famous charges against Justice Clarence Thomas, but the two cases are only superficially similar. Let it go.

All that matters, in my view, is preservation of the foundation stone. Go to the Constitution! It is beautiful. It vests legislative powers in Congress, executive powers in the presidency, judicial powers in the federal courts. The Founding Fathers envisioned a design as symmetrical as the Olympic rings, separate but interlocking. No branch could dominate another.

Paula Jones would break the presidential ring. If the courts temporize -- if the courts permit this lawsuit to proceed for even one day -- the executive power becomes a captive of the judicial power. This cannot be permitted to happen.

Ours is the most litigious country in the world. For good or ill, 600,000 lawyers are out there trying to make a living. If a president becomes fair game, rest assured that litigants and their lawyers will go for the potshot. The ingenuity of the plaintiffs' bar is boundless. Presidents may be protected -- up to a point -- from lawsuits based upon their official actions, but they have no protection against the Paula Joneses of this world.

At least they have no protection yet. Congress has the power to adopt ''exceptions and regulations'' governing the jurisdiction of the Supreme Court. By sensible inference, that power must extend to the lower federal courts as well. By a short and simple statute, Congress could forbid the lower federal courts to hear any civil or criminal proceeding brought against a president during his term in office for alleged offenses committed before taking office.

Forty-odd years ago, one William Brandhove invoked the same federal law invoked by Paula Jones. He alleged that a legislative committee in California had violated his civil rights. The suit wound up in the U.S. Supreme Court, where Justice Felix Frankfurter ruled that Section 1983 could not be used against sitting legislators.

The privilege of legislative immunity, said Frankfurter, would be of little value if legislators could be subjected to the ''cost and inconvenience and distractions'' of a trial.

Surely this reasoning would apply to Jones v. Clinton. Unless such suits are stopped dead in their tracks, a president could be subjected endlessly to ''the cost and inconvenience and distractions'' of lawsuits brought against him. It is unthinkable that in the midst of some national crisis, a district judge could order a president to answer a summons.

Yes, postponement of her suit to 1997 or 2001 would be unfair to Paula Jones, but first things first. Our foundation stones have eroded over the years; the judiciary legislates, and the executive adjudicates. Federalism is almost a lost cause. Even so, the underlying principles are sound, and at the cost of postponing a sordid lawsuit, they have to be preserved.

James J. Kilpatrick is a syndicated columnist.

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