President Faces Legal Bramble in Clinton vs. Jones

WASHINGTON â€”  It comes up one week before President Clinton’s second inauguration and it has the potential to tarnish, perhaps even ruin, his second term of office.

It is the sexual harassment lawsuit filed by Paula Corbin Jones, which will be heard before the Supreme Court on Monday with a ruling expected by June.

The president’s lawyers are asking the justices to reverse two lower courts and to block all further action in her lawsuit until Clinton leaves office. They argue a “temporary deferral� of civil litigation involving the chief executive serves “the public interest in protecting the presidency from disruption.�

But they face an uphill fight in the high court, which has been stingy about granting legal immunities to public officials.

If the court were to rule against the president, then Clinton and the Arkansas state troopers who once served him could soon after be ordered to answer questions under oath from Jones’ lawyers and eventually forced to stand trial.

Even the pretrial depositions could prove embarrassing and politically damaging if, as is likely, they are released to the public.

Jones’ lawyers want to show that Clinton, when he was governor of Arkansas, had a habit of using troopers to procure women. If this could be shown, it could convince a jury that Jones’ story is true.

Early in 1991, Jones had gone to work as a clerk for the Arkansas Industrial Development Commission. On May 8 of that year, she was working at a state-sponsored conference at the Excelsior Hotel in Little Rock.

Her lawsuit alleges that Clinton told Trooper Danny Ferguson to escort her to a private hotel room where, she says, the governor dropped his pants and asked her to perform oral sex.

Last year, the U.S. Court of Appeals not only refused to block the depositions in the case but also ruled that Clinton could be ordered to stand trial on the sexual harassment charges while in office.

A trial could go forward as long as Judge Susan Webber Wright in Little Rock did her best to “avoid interference� with Clinton’s duties as chief executive, the appeals court said.

“The president, like all other government officials, is subject to the same laws that apply to all other members of society,� wrote Judge Pasco Bowman.

At the White House, officials say they are not paying much attention to the case or to the Supreme Court argument. “It’s not going to cause me any difficulties because I’m going to do my job,� the president said Friday when asked about the case during a photo session.

Still, the lawsuit has the potential to cause difficulty for Clinton because it is in essence a simple story.

The Whitewater saga that has dogged Clinton throughout his first term, as well as fund-raising scandals that marred the 1996 campaign, involve complicated financial dealings. In most instances, Clinton is a step removed from the alleged violations.

By contrast, the allegations raised by Jones involve Clinton himself and portray a powerful official’s crude and gross advances to a vulnerable low-level employee.

In the Supreme Court, Clinton’s lawyers hope to avoid the tawdry aspects of the case and focus on its potential effect on the nation and the presidency.

“The president’s litigation, like the president’s illness, becomes the nation’s problem,� Clinton’s private attorney Robert S. Bennett said in his brief. He argues that forcing the president to respond to a lawsuit will divert him from his pressing responsibilities, weaken him abroad and give a judge the power to control his schedule.

In the past, the Supreme Court has refused to give government officials a legal immunity that goes beyond what is absolutely necessary to carry out their jobs.

For example, while prosecutors cannot be sued for prosecuting a defendant in court, they can be sued for advising police investigators on how to pursue a case, the court has said. Similarly, judges cannot be sued for their judicial decisions, but they can be sued over their decisions on hiring or firing employees.

Fifteen years ago, the Supreme Court blocked a damage suit against President Nixon that grew out of the firing of a Pentagon whistle-blower. The president is immune from being sued over his “official acts,� the justices ruled by a 5-4 vote in Nixon vs. Fitzgerald.

No one even suggested, however, that a president could claim an immunity from being sued for his private misconduct before taking office, whether it was causing an auto accident or defrauding a business partner.

After hearing arguments Monday in Clinton vs. Jones, 95-1853, the court will vote privately and issue an opinion in several months.

Lawyers for Jones say they have several witnesses who will testify about seeing Clinton and Ferguson talking just before Jones was asked to come to his hotel room.

They are also expected to testify that the young woman soon returned flustered and recounted her story of Clinton’s behavior.

Jones is not seeking “some political soapbox but a forum where the truth, in fact, can be tried,� her attorney, Joseph Cammarata, said Friday. “What she wants most of all is an opportunity to be heard.�

But Clinton’s lawyers could still succeed in killing the case, even if their temporary-immunity claim fails in the high court.

First, they will seek to have her lawsuit thrown out because of a threshold problem. Jones’ case is not a standard lawsuit alleging sexual harassment. Because a 180-day deadline had passed, Jones and her lawyers were unable to file a claim under the federal Civil Rights Act that she had suffered harassment on the job.

Instead, her lawyers were forced to file a claim under an old Reconstruction statute that covers officials acting “under color of law.� Her complaint begins by saying she seeks “to obtain redress for the deprivation and conspiracy to deprive plaintiff [Jones] of her federally protected rights.�

By coincidence, the Supreme Court dealt with this same provision last week in a criminal case involving a Tennessee state judge who sexually assaulted several women in his chambers.

A lower court said the judge’s behavior, while repugnant, did not violate a federal right. Disagreeing, Clinton administration lawyers argued that a public official violates a federal right if he commits a “serious and substantial intrusion� on a woman’s “bodily integrity.�

But if the Jones case proceeds, Clinton’s private lawyers may argue that the then-governor did not violate any federal right even if he crudely propositioned a state employee.

“The president’s lawyers will go back to court in Little Rock and say this suit should be dismissed because it fails to state a cause of action,� said University of Virginia law professor Pamela Karlan, who joined a friend-of-court brief on Clinton’s side in the Supreme Court.

Based on that motion, Wright could simply throw out the lawsuit.

Other lawyers, however, say it will survive this preliminary hurdle. They note that Jones also claims she suffered emotional distress and defamation of character because she was cited wrongly as having complied with Clinton’s demands. When Jones sought an apology, a White House aide, supposedly speaking for Clinton, said the incident never happened.

Jones says this story and Clinton’s response embarrassed her and damaged her reputation. In all, she seeks $700,000 in damages.

If the suit continues and Clinton is forced to testify, his attorneys will then likely fight to keep the depositions sealed, according to lawyers familiar with the case.

“There aren’t clear standards on when it is appropriate to seal the records,� said Jill Fisch, a Fordham University expert on civil litigation.

In many big business disputes, the companies on both sides agree to seal the records. In this case, however, Jones’ lawyers will likely argue there is a public interest in releasing the depositions.

“One side can say it is embarrassing, sensitive information that should not be released, while the other side says there is a public right to know,� Fisch said.

Even if the depositions were sealed, she noted, the witnesses who testified are entitled to disclose what they say. A court order would simply bar the attorneys from releasing the transcripts.