June 2, 1997

What if Congress Voted on Presidential Immunity?

As everyone knows by now, Paula Jones has sued President Clinton for acts he is alleged to have committed before he became President. Mrs. Jones's allegations are sometimes dismissed with the kind of nonchalance that might be appropriate if she had accused little Billy Clinton of chasing her on the playground and kissing her. A recent Herblock cartoon showed a young woman at the law firm of Sue, Sue & Charge saying, "I just remembered -- this politician made a pass at me when we were in school." But contrary to some of the punditry, Mrs. Jones's allegations are not trivial, they are grave, because they are about an abuse of power as well as sexual impropriety.

The Particulars of the Allegations.

Paula Corbin Jones alleges that on the afternoon of May 8, 1991, then-Governor Bill Clinton had an Arkansas state trooper bring her to a hotel room where the Governor was waiting. At the time, Mrs. Jones was an employee of the Arkansas State Industrial Commission -- Bill Clinton was her boss. She alleges that the Governor touched her in a sexually provocative way, exposed himself, and asked her to perform a sexual act. When she refused, a veiled threat allegedly was made. Because she spurned the Governor's advances, she claims that her supervisors punished her by treating her rudely and changing her duties. In her lawsuit, Mrs. Jones claims that Bill Clinton deprived her of her civil rights, in part through a conspiracy, and caused her severe emotional distress. She also alleges that she has been defamed. Through his attorney, President Clinton has denied all of Mrs. Jones's allegations.

The Lawsuit Must Go Forward.

Until last week, the President had successfully delayed Mrs. Jones's lawsuit by claiming that he could not be sued until he left office, but on May 27 a unanimous Supreme Court held in Clinton v. Jones that the Constitution does not protect a sitting President from a lawsuit that is predicated on private, pre-presidential conduct.

A Role for Congress?

Of course, as the Court itself noted, "If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation." There are statutory precedents for deferring civil litigation to accommodate other important interests, e.g., debtors who file bankruptcy petitions and active duty military personnel are entitled to a stay of civil proceedings. If Congress were to vote on a bill to protect a sitting President, the country soon would learn how grave are Mrs. Jones's allegations.

How the Legislative Process Might Show the Gravity of Mrs. Jones's Charges. Imagine two United States Senators who take different views of presidential immunity. The first believes that a President ought to be immune from virtually all civil lawsuits during his term of office, and the second believes that a President ought to be susceptible to suit the same as any other citizen. When the first Senator introduces an amendment to immunize the President, the second Senator rushes to the floor carrying five second-degree amendments:

• One amendment provides that there will be no immunity for any act that denied a person her federally-guaranteed civil rights (including her rights to due process of law and to the equal protection of the laws).
• Another amendment provides that there will be no immunity for sexual harassment, particularly including unwelcome sexual contact initiated by an employer or supervisor and directed toward a subordinate.
• The third amendment provides that there will be no immunity for conspiracy to deprive another of her civil rights.
• The fourth amendment provides that there will be no immunity for an abuse of public office. The amendment singles out the unauthorized use of state troopers or other police authority.
• The final amendment provides that there will be no immunity for any act that would constitute a violation of a criminal law. In her remarks on the amendment, the second Senator mentions laws against --
• indecent exposure (an individual can commit the crime of indecent exposure if, with a purpose to arouse or gratify sexual desire, he exposes his sex organs under circumstances that likely will cause affront or alarm);
• assault (an individual can commit assault if he purposely creates in another individual an apprehension of imminent physical injury); and
• battery (an individual can commit battery if he intentionally touches another individual in an insulting or provoking way).

Much to the chagrin of the imaginary White House in this imaginary situation, the second Senator is insisting on a roll call vote on each of her five second-degree amendments. She thinks that the United States Senate -- and the people of the United States -- should have an opportunity to think clearly about Mrs. Jones's complaint and the claims of the presidency. Should a sitting President be immune from this kind of lawsuit -- or is this exactly the kind of lawsuit that high government officials should have to answer to?