The Law and the President

January 06, 1995|By JAMES J. KILPATRICK

In the ordinary lawsuit, somebody wins and somebody loses, and it's not hard to tell which is which. The trouble is that Jones v. Clinton is no ordinary lawsuit.

At this juncture, it appears that Paula Jones has lost and Bill Clinton has won, but there is more to the recent decision by federal Judge Susan Webber Wright. The office of the presidency has won an important victory.

As just about everyone knows, Paula Jones alleges that in 1991, when she was a low-ranking state employee in Arkansas, then-Gov. Clinton lured her to a hotel room where he made crude sexual advances. She says he exposed himself and implicitly invited oral sex. She fled the scene.

Three years later she brought the pending lawsuit, asking damages for emotional pain and suffering. In the meantime, of course, Mr. Clinton had become president of the United States. The question presented to Judge Wright is a question the courts have never faced: Is a sitting president immune from civil trial for acts performed before he assumed office?

The courts many times, in many contexts, have ruled upon the immunity of public officials for their official acts. Judges are generally immune; prosecutors and police are immune; almost a hundred years ago the Supreme Court held that a postmaster general is immune. In the famous case of Nixon v. Fitzgerald, the high court ruled in 1982 that a president cannot be sued for violating the statutory rights of a federal employee.

None of these precedents applies directly to the case of Paula Jones. Her lawsuit requires the federal courts to tread gingerly on swampy ground.

Ms. Jones assuredly has rights that must be protected and preserved -- specifically, her right to her day in court. But the office of the presidency also has rights that must be protected and preserved -- specifically, the right of a sitting president to be immune from judicial harassment while in office.

Judge Wright carved it down the middle. She ruled that while in office, President Clinton cannot be haled into a trial court to defend himself. Ms. Jones must wait until 1997, or possibly until 2001, to press her lawsuit. But meanwhile, said Judge Wright, her counsel may take depositions and preserve evidence from her witnesses.

The decision certainly does not satisfy Ms. Jones, whose cause of action is bound to grow stale as the months and years go by. Neither does it satisfy the president, whose attention must be diverted from official duties as the depositions are taken.

This is not a ruling that a president is above the law. It is simply a ruling that in these unprecedented circumstances, he is above the law right now.

The decision should satisfy objective observers. A vitally important principle is at stake in this affair -- a principle as old as the foundations of our constitutional republic. It is the principle of separation of powers. If the decision were otherwise, a president could be endlessly harassed by ingenious lawyers and tin-pot judges. This cannot be permitted to happen.

Let me recall the Fitzgerald case against Richard Nixon. It is not directly in point, but it casts light on the problem. Ernest Fitzgerald was a management analyst in the Department of the Air Force. In 1968 he blew the whistle on what he believed to be cost overruns on the C-5A transport plane. He testified before a congressional committee. In 1970 the Pentagon fired him.

Fitzgerald sued everyone in sight, including the president, charging that Nixon had sanctioned his dismissal in retaliation for his testimony. The case at last reached the Supreme Court. Nixon had long since left office, but Justice Lewis Powell spoke for a five-member majority:

''We hold that petitioner, as a former president of the United States, is entitled to absolute immunity from damages liability predicated upon his official acts. . . .

''Because of the singular importance of the president's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.''

In a concurring opinion, Chief Justice Warren Burger commented that ''the needs of a system of government sometimes must outweigh the right of individuals to collect damages.''

A president must be free from the risk of control or intimidation by the judicial branch. Judicial intervention ''would inevitably impede the functioning of the office of the president.''

Paula Jones waited three years to file her suit. She will not be greatly discommoded if she waits another few years to take it to trial. It's the principle that counts.

James J. Kilpatrick is a syndicated columnist.

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