Clinton May Have Edge in Pressing Immunity Claim

June 05, 1994|By LYLE DENNISTON

WASHINGTON — Washington.--Documents revealing the Supreme Court's most private discussions indicate that President Clinton and his lawyers are likely to start with a considerable advantage this summer when they try to stop the Paula Corbin Jones sexual harassment lawsuit with a claim of legal immunity.

When the court last faced a claim similar to the one Mr. Clinton's lawyers are preparing to make, demands by some justices for only limited immunity for the president against personal lawsuits were swept away by a majority in favor of much broader protection.

After an internal struggle stretching over more than two years and badly fracturing the court, that majority prevailed by the narrowest margin -- 5 to 4 -- in June 1982. Now, three of that majority's five members remain on the court, and the last of the four dissenters still there -- Justice Harry A. Blackmun -- is retiring and would not be on hand if the Jones case gets to the court.

The struggle focused on two lawsuits against Richard M. Nixon after he had left the presidency. The first, by a former aide whose telephone had been tapped when the president's other aides thought he was leaking secrets to the press, ended with a frustrated and angry court splitting 4-4. That was, in effect, a non-decision, so the court did not let on in public just how hotly that battle had been waged.

The second lawsuit, by a Pentagon aide who was fired after blowing the whistle on overspending on a military airplane, finished with the 5-4 decision blocking that lawsuit or any other civil claims in court against Mr. Nixon and insulating all future presidents from a good many legal claims by disgruntled citizens.

That, too, was a bitterly contested case. The full extent of the conflict, and the actual sweep of the immunity concept the court pondered, can now be traced in the files of the two cases in the Library of Congress' public collection of the late Justice Thurgood Marshall's papers.

In coming weeks, President Clinton's legal maneuvering through his private lawyers is to be a sequel, testing just how big the cloak of presidential immunity is going to be.

Back in 1982, however, it was clear that the court majority had a bold, ambitious notion of of immunity in mind. Nothing in the case files suggests that a majority was thinking that by granting a president legal immunity for actions taken in office they were necessarily ruling out immunity to damage lawsuits for unofficial acts or those that occurred before a president took office.

With no specific word or clause in the Constitution suggesting that a president ought to be immune to civil lawsuits, and no prior Supreme Court precedent that was even close on that issue, a core group of justices pressed for immunity so grand in scope that then-Justice Byron R. White complained repeatedly through sharply barbed criticisms at his colleague.

It started early, with Mr. White accusing the majority of embarking on "a most mistaken course that will disserve the law and the country." The immunity those justices were fashioning, he said, amounted to "gross overkill," far more than was needed to protect presidents from nuisance lawsuits.

The echo of that controversy will be heard in a federal court in Little Rock -- and perhaps, ultimately, back in the Supreme Court -- in Paula Corbin Jones' lawsuit seeking $700,000 in damages from Mr. Clinton. The reams of Supreme Court documents that spell out the backstage story of a dozen years ago thus are not likely to remain neglected paper relics of history, but instead will fuel the reopened constitutional feud over presidential immunity.

Ms. Jones, a former Arkansas state employee, in May sued the president personally, charging him with "sexually harassing and assaulting her" in a Little Rock hotel room in May 1991 while he was governor of Arkansas.

That was, of course, nearly two years before Mr. Clinton became president. A governor would not be likely to get much immunity, if any, for an incident of that kind, so Mr. Clinton's lawyers will have to make do with presidential immunity -- if, as they hope, they can fit that within the reach of the June 1982 ruling in the Nixon case.

The decision of the Supreme Court then clearly gave presidents immunity from legal claims based on what they did while in office. Ms. Jones' attorneys, therefore, are expected to argue that Mr. Clinton cannot use that ruling to shield any actions that allegedly occurred in 1991, before his presidency started.

But as Mr. Clinton's attorneys dig more deeply into the history of presidential immunity, and the basic reasons the court gave for it in 1982, they are becoming persuaded that the 12-year-old ruling was so comprehensive in scope and meaning that only something close to "absolute immunity" satisfies the Constitution and the needs of the presidency.

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