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Will She Have Her Day In Court?

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Clinton's main argument for recognizing this kind of "temporary immunity" is that a President should not be required to drop affairs of state every time someone decides to sue. If this door is opened, the argument goes, Presidents will be besieged by politically motivated lawsuits. "It's really about the people's interest in having the President at his desk doing the job they elected him to do," says Stanford law professor Kathleen Sullivan, who signed a pro-Clinton brief.

But to Jones' supporters, the issue is whether the President is above the law. Duke law professor William Van Alstyne says a ruling for Clinton would be "monarchy on the installment plan." Jones' lawyers contend that her case is not about dollars--she has said she would give any damages money left after she paid her attorneys to charity--but reputation. "It's had an emotional toll on her that people are calling her a bimbo, trailer-park trash, a gold digger," says Jones' lawyer, Joseph Cammarata, who argues she should not have to wait until 2001 to begin clearing her name. He also contends that the burden on Clinton of proceeding with the lawsuit has been overstated. "This President goes on vacation, he plays golf in Hawaii and Australia, he jogs, he even wrote a book while in office," Cammarata says. "The duties of the office of President are not unremitting."

The Supreme Court could decide to take a middle course. That would mean putting off the actual trial but allowing pre-trial "discovery," including questioning of the principals and potential witnesses. But it is not clear that it would help Clinton much. Discovery can be more intrusive than a trial; Jones' lawyers might be inclined to dig into peripheral matters such as other sexual incidents involving the President. And even if depositions were taken under seal, it is unlikely that even a sealed deposition of the President would actually remain secret.

It is always difficult to predict what the Supreme Court will do, and almost everyone agrees this is a close case. (The two federal courts to hear it so far have split, with Clinton winning at the trial level and Jones on appeal.) But there are good reasons to believe that the court may be reluctant to allow Jones' suit to go forward. The Supreme Court generally treads lightly in "separation of powers" cases, where one of the three branches of government is being subjected to the dictates of another. If Jones won, the President would in theory have to answer to any of the 586 of U.S. District Court judges who might choose to haul him into their courtroom if cases are filed against him. And opening a President up to litigation like Jones' would inevitably diminish the stature of the office. "Much of what Presidents rely on is their power of persuasion," notes presidential historian Michael Beschloss. "It is very hard for them to be persuasive if what is being heard is this kind of low stuff."

Further complicating the case are some unusual court dynamics. The most conservative Justices, like Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, who may be least warmly inclined toward this particular President, have been the most philosophically committed to a strong presidency. More liberal members, who are more open to the general idea of allowing a President to be sued, may have more sympathy for this President, who elevated two of them to the bench. Justice Ruth Bader Ginsburg may be in the toughest position of all. As a former women's-rights litigator and a Supreme Court moderate, she is certainly a potential Jones vote. But with the Washington rumor mill saying Clinton will appoint her Chief Justice if Rehnquist retires, it could be a hard time for any judge in her position to rule against the President in a major case.

In the end, the deciding factor may be one that should, as a legal matter, be irrelevant: the raw quality of Jones' allegations. A decision in her favor would open the President up not to a run-of-the-mill civil lawsuit but a potentially lurid judicial voyage through a world of alleged use of state troopers to procure women, and purported "bimbo eruptions." Clinton would no doubt be questioned about contentions like paragraph 22 of Jones' complaint: that "[t]here were distinguishing characteristics in Clinton's genital area that were obvious to Jones." Even Justices reluctant to extend presidential privilege may feel that there are some questions the leader of the free world should not have to answer.


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