Amicus Curiae Brief — Clinton v. Jones

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1995

>_>

WILLIAM JEFFERSON CLINTON,

Petitioner,

—

PAULA CORBIN JONES.

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE OF LAW PROFESSORS

IN SUPPORT OF RESPONDENT

(Counsel continued on inside front cover)

Ronald D. Rotunda

Counsel of Record

Albert E. Jenner, Jr.

Professor of Law

University of Illinois

College of Law

Champaign, IL 61820

(217) 333-3459

BEST AVAILABLE COPY!

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Stephen B. Burbank

David Berger Professor

for the Administration of Justice

University of Pennsylvania

Law School

3400 Chestnut Street

Philadelphia, PA 19104

William Cohen

C. Wendell and Edith M. Carl«mith

Professor of Law

Stanford University

Palo Alto, CA

Geoffrey P. Miller

Professor of Law

New York University

Law School

40 Washington Square South

New York, NY 10012

Robert F. Nagel

Ira Rothgerber Professor

of Constitutional Law

University of Colorado

Law School

P.O. Box 409

Boulder, CO 80309

Richard Parker

Professor of Law

Harvard Law School

Cambridge, MA 02138

L. A. Scot Powe, Jr.

Anne Green Regent

Professor of Law

University of Texas Law

School

727 E. 26th Street

Austin, TX 78705

Stephen B. Presser

Raoul Berger Professor

of Legal History

Northwestern University

School of Law

375 E. Chicago Avenue

Chicago, IL 60611

William Van Alstyne

William R. and

Thomas C. Perkins

Professor of '.aw

Duke University

School of Law

Durham, NC 27708

TABLE OF CONTENTS

INTEREST OF AMICI.............. isaainas eninekes I

EEE EEE I

SUMMARY OF ARGUMENT ......................... 2

ST re cnedbeesbebebbcnsdcececccocccceces< 5

I.

If.

Il.

THE BROAD IMMUNITY FOR WHICH

THE PRESIDENT AND HIS AMICI CON-

TEND WOULD BAR MANY CASES

WHERE NO PRESIDENTIAL OR OTHER

PUBLIC INTEREST WOULD BE HARMED

BY SUBJECTING THE PRESIDENT TO

ES EE cccccccccccccccccceesceocs: 5

NIXON v. FITZGERALD BARS ONLY

DAMAGE SUITS RELATED TO A PRESI-

DENT’S OFFICIAL ACTS, AND IT DOES

SO ONLY BECAUSE THE PROSPECT OF

PERSONAL LIABILITY FOR OFFICIAL

CONDUCT WOULD PREVENT THE PRESI-

DENT’S OBJECTIVE ASSESSMENT OF

THE FACTS HE SHOULD CONSIDER IN

CARRYING OUT HIS DUTIES—NOT

BECAUSE THE PRESIDENT IS TOO BUSY

TO ATTEND TO PRIVATE LAWSUITS ... 7

SEPARATION OF POWERS PRINCIPLES

REQUIRE THAT THE PRESIDENT BE

SHIELDED ONLY FROM SPECIFIC

DEMANDS ON HIS TIME THAT WOULD

ACTUALLY INTERFERE WITH HIS

enh decsceeceecscecceses pion 14

PAGE

A. Under General Separation Of Powers

Principles, Immunity From Suit

Regarding Private Conduct Can Be Just-

ified Only If President Clinton Can Show

That His Amenability To Suit Would

Actually Interfere With The Fulfillment

Of the Duties Of His Office ............ 16

B. Cases Dealing With The President's

Amenability To Process Also Require

The President To Make A Specific

Showing Of Conflict With His Duties

In Order To Escape Any Particular

Se kdnsvcinccdsétnednndeantecces 18

IV. A WIDE VARIETY OF TOOLS IS AVAIL-

ABLE TO THE COURT TO PREVENT THE

USE OF LITIGATION AS A TOOL OF

EEEDES 00 svanccctccnncacesdensscntone 20

V. THE TEMPORAL IMMUNITY PRESIDENT

CLINTON SEEKS IS FUNDAMENTALLY

INCONSISTENT WITH THE CONSTITU-

TION’S EFFORT TO ENSURE THAT ALL

OF THE POWERS IT CONFERS ARE

CHECKED AND BALANCED .............. 24

SS Pe cctcvcccccccenscsscudunssenssusqsoteseces 25

TABLE OF AUTHORITIES

Cases: PAGE

Atlee v. Nixon, 336 F. Supp. 790 (E.D. Pa. 1972)...... 12

Arnold v. Jones, 891 F.2d 1370 (8th Cir. 1989)........ 21

Bowsher v. Synar, 478 U.S. 714 (1986) ............... 24, 26

Burns v. Reed, 500 U.S. 478 (1991) ................... i)

Butz v. Economou, 438 U.S. 478 (1978) ............... 8,9

Commodities Futures Trading Commission v. Schor,

Fe ee hididieninhthastiatersesenedsehes 26

Davis v. Passman, 442 U.S. 228 (1979) ............... 25

Degan v. United States, 116 S.Ct. 1777 (1996)........ 23

Dennis v. Sparks, 449 U.S. 24 (1980).................. 4

Ferri v. Ackerman, 444 U.S. 193 (1979)............... 9

Franklin v. Massachusetts, 505 U.S. 788 (1992) ...... 12

Goldwater v. Carter, 444 U.S. 996 (1979)............. 13

Imbler v. Pachtman, 424 U.S. 409 (1976) ............. 9

Immigration and Naturalization Service v. Chadha,

SP es CIEE caccdnctadeccseecdenetsanssane 16

Komasinski v. Internal Revenue Service, 588 F. Supp

Ch Mi socvensesssoknesckeacioetcain 20

Kleindienst v. Mandel, 408 U.S. 753 (1972)........... 19

Leatherman v. Tarran County Narcotics Intelligence

and Coordination Unit, 113 S. Ct. 1160 (1993) .. 21

Marbury v. Madison, | Cranch (5 U.S.) 137 (1803)...13, 15

iv

Martin v. Malhoyt, 830 F.2d 237 (D.C. Cir. 1987)..... 21

Minnesota Chippewa Tribe v. Carlucci, 358 F. Supp.

973 (D.D.C. 1973) ........cccccsccccccccececcccees 12

Mississippi v. Johnson, 71 U.S. (« Wall.) 475 (1868) . 11

Mistretta v. United States, 488 U.S. 361 (1989)...16. 18, 25

National Treasury Employees Union v. Nixon, 492 F.2d

$87 (D.C. Cir. 1974) .......ccccccccccccccccecccees 12

Nixon v. Administrator of General Services, 433 U.S.

42S, 443 CIDTT) ..cccccccccccccccccccccesecsess 16, 17, 18

Nixon v. Fitzgerald, 457 U.S. 731 (1982)........----- passim

Pierson v. Ray, 386 U.S. 547 (1967)........-.-002e00s x

Romer v. Carlucci and Western Solidarity v. Reagan,

847 F.2d 445 (8th Cir. 1988)............. 00 eee ees 12

Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989)..... 20

Scheuer v. Rhodes, 416 U.S. 232 (1974).............-. XS

Tenney v. Brandhove, 341 U.S. 367 | | ae i)

United States v. Burr, 25 F. Cas. 30 (CC Va. 1807) ...15, 18

United States v. Burr, 25 F. Cas. 187 (CC Va. 1807) .. 22

United States v. Fromme, 405 F. Supp. 578

(E.D. Cal. 1975) ........ccccccccrccccencceneceeces 22

United States v. Mitchell, 385 F. Supp. 1190

(D.D.C. 1974)......ccccccccccccccccccevccccecceces 22

United States v. Nixon, 418 U.S. 683 (1974) ......... passim

United States v. North, 713 F. Supp. 1448

(D.D.C. 1989)... ...cccccccccccccccccecccecccseces 22

Vv

PAGE

United States v. Poindexter, 732 F.S

. q . Supp. |

Se eee sil ” 22

United States v. Poindexter 732F.S

. \ . Supp. 14

eee si vi 2 18

United States v. Poindexter 732F.8

. . . Supp. |

ER aR ie 23

Youngstown Sheet & Tube Co. y. Sawyer, 343 U.S. 579

ER Me RON wT aT pees ni 12,19

Constitutions, Statutes and Rules:

U.S. Const. Amend. XIV..............._ 25

Ethics in Government Act, 28 U.S.C. § 591 et seg. ... 19

Soldier’s and Sailor’s Civil Relief Act of 1940,

50 U.S.C. app. §§ 501-91... 19

Pe ie ID vincccdeccncdcecescec...o.'. 20

Be Wis UE wei vindcccccucceesceace..... 19

SBR ck a ee 21, 25

Miscellaneous:

3 Max Farrand, The Records of the F

‘ ed

of 1787 (1966) mice iaarcennas steered 25

The Writings of Thomas Jefferson (Ford ed.) ....... 15

Ronald = Rotunda and John E. Nowak, Treatise

on Constitutional Law: Substance and P

(West Pub. 2ded. 1992)... nog 14

Ray, From Prerogative to Accountability: The

Amenability of the President to Suit. &

, 80 Ky. L.

739 (1992) votes

vi

L. Tribe, American Constitutional Law (2d ed.

19BB) ....cecccccccscccccccccccsccccesececccoesenes

Memorandum Amicus Curiae of Law Professors in

Dellums v. Bush, reprinted at 27 Stanford J.

Int’] L. 257 (1991) ..... 0.0 cece cence cece ee eeeees

PAGE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1853

>

WILLIAM JEFFERSON CLINTON,

Petitioner,

—V -—

PAULA CORBIN JONES,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

>

BRIEF AMICUS CURIAE OF LAW PROFESSORS

IN SUPPORT OF RESPONDENT

INTEREST OF AMICI

This case presents a grave question regarding the degree of

personal power conferred upon the President of the United

States by virtue of his office. Amici curiae, the law professors

submitting this brief, have published and lectured widely on

the subjects of constitutional law in general or on the sepa-

ration of powers. This brief sets forth their considered views

on the issues raised in this case. Amici sign this memorandum

on their own behalf and not as representatives of their respec-

tive schools.

Counsel for both parties have consented to the filing of this

brief. Their stipulation to that effect has been lodged with the

Court.

2

STATEMENT

The last several decades have seen a number of sharp con-

flicts over the relative powers of the President and the

government's other branches. Until now, the Executive's argu-

ments have been limited to the assertion of an exclusive right

on the part of the President or his subordinates to exercise

some official governmental power that might otherwise—and

perhaps more properly—be shared by two branches, or be

within the sole domain of the legislature or the courts.

The immunity claim in this case is of a new and deeply

troubling kind: for the first time, a purely personal privilege

is said to attend the office of the presidency. Though the

immunity now claimed is characterized as a mere temporal!

restriction, we believe the argument advanced to support it

ignores one of the Constitution’s overwhelmingly important

goals: to control power. For that reason, the personal immu-

nity claimed cannot be made to fit within the law governing

the immunity of federal officials from personal liability for

official conduct, or within a coherent view of the relationship

between the President's powers and those of the other

branches.

SUMMARY OF ARGUMENT

The arguments submitted in support of President Clinton’s

claim of immunity from suit start with the proposition that the

burden is upon the plaintiff to demonstrate that subjecting the

President to a suit for purely private conduct’ will not impose

The bulk of the private conduct at issue here is remote from the

President's official functions, because it allegedly occurred before Pres-

ident Clinton entered office. These allegations must be distinguished

from the potentially more difficult situation where the acts at issue were

committed while the defendant was in office, but were private in the

sense that they were unrelated to his performance of presidential duties.

We understand that one count of plaintiff's complaint, for defamation,

does relate to actions taken by or on behalf of President Clinton while he

an excessive burden upon the office of the presidency, or pre-

vent the fulfillment of the President’s duties. We submit that

this is incorrect, and indeed that the burden is exactly

reversed: we believe that this Court’s separation of powers

jurisprudence allows the President to escape the courts’ juris-

diction in a civil action dealing with non-official conduct only

if he can demonstrate that the assertion of such jurisdiction

will interfere with the fulfillment of the duties of his office.

We submit further that he has not made such a showing.

The President and his amici suggest that this burden rests

on the plaintiff because she challenges only private conduct—

so that there is, so it is said, no public interest in the plain-

tiff*s enforcement of her rights. But we believe strongly that

this stands the law, and indeed the entire concept of the rule

of law, on its head: there is a compelling public interest in

assuring that the law—particularly the Civil Rights Statutes,

which enable the people to make real use of essential Con-

stitutional liberties—is enforced uniformly, and that the pres-

idency (or any other public office) is not used as a shield

behind which an individual can hide to evade equal justice

under the law. To ensure that public office is not so used,

every public official seeking exemption from the ordinary

course of judicial proceedings has the burden of demon-

Strating that the particular exemption he or she seeks is nec-

essary to the execution of his or her public duties.

In contrast, President Clinton asserts immunity here not on

the basis of any particularized conflict with his executive

responsibilities. Rather, he says he is immune from this entire

case, and from most other entire cases, merely as an incident

of holding office, and for as long as he remains in office.

Consideration of other cases that might be filed against a

President, all well within the very general rule urged upon

this Court by the President, the Solicitor General, and the

was in office. We express no view on the extent to which the actions at

issue in this Count are within the outer perimeter of his official duties.

as that concept is defined by Nixon v. Fitzgerald, 457 U.S. 731 (1982).

4

President’s academic amici, makes clear that the claimed

immunity is far too broad. Instead, the courts are empowered

to, and should, protect the President from any specific action,

such as a discovery or trial demand, that will actually inter-

fere with the performance of his job.

Secondly, the President’s personal lawyers—although not,

as we discuss below, the Solicitor General—have approached

this case as if it were the law that Presidents are immune from

suits related to their conduct in office. Passages in the brief of

the President’s academic amici also lend some support to this

proposition. Both the President and his amici, however, move

from this premise to what they portray as the next question,

namely whether the President is similarly immune from suit

related to his private conduct.

The premise, however, is wrong, as the President’s amici

elsewhere essentially concede. Nixon v. F.izgerald does not

hold that the President cannot be sued for his official acts.

And in fact, since the Watergate era, a consensus has devel-

oped among the lower courts that the President can be sued,

while in office, over his official conduct. This amenability to

suit even for acts regarding his official duties is a profoundly

important mechanism for helping to ensure that the President

remains under the law, which defines the scope of his official

powers. In allowing this private action to go forward, this

Court need not address the question whether the President is

amenable to suit, for relief other than damages, for his official

conduct. There is certainly no need for this Court to adopt the

President’s broad characterization of the immunity of his

office. We urge this Court not to do so.

Rather than barring suits over the President’s acts, Nixon v.

Fitzgerald simply forecloses one potential remedy—an award

of damages against the individual—in such proceedings. It

does so for one reason: because the existence of that remedy

might distort the President’s judgment, preventing him from

objectively assessing the factors he must consider as he goes

about his duties.

5

Once it is apparent that Fitzgerald is about a particular

remedy—personal payment of damages—for allegedly

improper official action, we believe it clear that the case sim-

ply does not speak to the question now before this Court

Rather, a correct assessment of President Clinton’s immunity

claim must be derived from the separation of powers doctrine

and specifically from the cases governing the President's

amenability to judicial process. Those authorities, we submit

make no room for the President's claim that he is too busy

while in office to be held accountable for his personal actions

whether taken while in office or previously. If any immunity

is to be created beyond that provided for by existing law (and

we perceive the need for none), it is for Congress to d

and respond to that need. ; —

ARGUMENT

I. THE BROAD IMMUNITY FOR WHICH

THE PRES-

IDENT AND HIS AMICI CONTEND WOULD BAR

MANY CASES WHERE NO PRESIDENTIAL OR

OTHER PUBLIC INTEREST WOULD BE HARMED

BY SUBJECTING THE PRESIDENT T

PROCESS hone

| Because the President attempts to block this entire case, the

immunity claim as nresented to this Court is quite categorical

The President’s argument is essentially that virtually no cases

can go forward that relate to his private conduct or his con-

duct prior to taking office. In support of this result, he claims

that the burden is upon the plaintiff to show irreparable prej-

udice if consideration of his or her claim were suspended for

as long as the President remained in office.

The President's argument would require that he be exempt

during his term of office from numerous obligations to which

everyone else in the Nation is held, even though there is no

compelling reason for such an exemption. If the President

6

were to default on an ordinary mortgage, for example, we can

see no reason why the mortgage holder should be barred from

enforcing its rights. They are only financial rights, it is true—

and therefore significantly less pressing than the interests at

issue in this case. The claim at issue here is also more sig-

nificant than the situation that would be presented, for exam-

ple, if a President were to fail to abate a nuisance on real

property, with respect to which his neighbors would otherwise

be entitled to injunctive relief. Yet the President's argument

would bar such an action, as it would also prevent a Presi-

dent’s spouse from seeking a divorce and child custody. As

discussed below, the separation of powers cases impose upon

the President the burden to show that calling him to account

on any such matter would actually interfere with the conduct

of his office. He does not explain how such a burden would

be created by requiring him to defend actions of this kind,

though the rule he contends for would bar each such case.

Certainly it would not be an excessive burden for the Pres-

ident’s lawyers to file a motion to dismiss, for example, in

any of these hypothetical cases, if the complaint were legally

deficient. Such a motion would involve only purely legal

issues, with respect to which the President’s counsel would be

able to act without any significant assistance from the defen-

dant himself. If the motion were denied, an Answer—at least

to a short complaint like the one filed in this case—would

also be no great burden to prepare. Surely fulfillment of this

duty cannot reasonably be expected to create an actual imped-

iment to the President's execution of the duties of his office.

As we show in greater detail below, the President may very

well be entitled to relief from a particular discovery demand

at a particular time, or from a particular demand regarding the

conduct or scheduling of a trial. But the law imposes upon the

President the burden of demonstrating that he is entitled to

any relief from the obligations imposed on any other citizen.

This is true, this Court has explained, of the President’s obli-

gation to give evidence. United States v. Nixon, 418 U.S. 683,

7

709 (1974) (“the public * * * has a right to every man’s evi-

dence” even when that evidence is a confidential official pub-

lic paper).

The President and his academic amici also suggest that the

claim at issue here is less important than other claims might

be, (see, e.g., Brief Amicus Curiae of Law Professors at 16)

and that requiring the plaintiff to wait up to six more years

even to prosecute this claim is not a significant burden. We

are surprised by this argument as much as we are convinced

that itis wrong. Sexual harassment of the kind alleged here—

a willful sexual degradation—affects the emotional well-

being of anyone touched by it. There is clearly a strong public

interest in enforcing the laws providing redress against such

conduct by public officials, as Mr. Clinton was when the acts

here at issue allegedly took place. Further, the interests at

stake are not only highly important: they are deeply com-

promised by delay. That the plaintiff chose to remain silent

about what she has alleged to have happened to her at the

time is no basis for watering down the rights she has left

when her anonymity is taken from her by actors totally out-

side her control.?

Il. NIXON v. FITZGERALD BARS ONLY DAMAGE

SUITS RELATED TO A PRESIDENT’S OFFICIAL

ACTS, AND IT DOES SO ONLY BECAUSE THE

PROSPECT OF PERSONAL LIABILITY FOR OFFI-

CIAL CONDUCT WOULD PREVENT THE PRESI-

DENT’S OBJECTIVE ASSESSMENT OF THE

FACTS HE SHOULD CONSIDER IN CARRYING

OUT HIS DUTIES—NOT BECAUSE THE PRESI-

DENT IS TOO BUSY TO ATTEND TO P

LAWSUITS yee

In addition to attempting to shift the burden on this issue

from the President to the plaintiff, Mr. Clinton’s personal

5

-

In making the above arguments, we of co iti

ing , urse take no position

on whether the incidents described by the complaint actually me place.

8

lawyers have argued as if this Court’s holding in Nixon v.

Fitzgerald, 457 U.S. 731 (1982), requires that courts cate-

gorically avoid subjecting Presidents to liability for the per-

formance of official duties. This is incorrect. It is essential

that Fitzgerald be recognized for the narrow decision it is. It

bars only a particular remedy. Its analysis is entirely consis-

tent with the other cases discussing the lack of that particular

remedy—and the existence of others—in cases charging offi-

cial misconduct by other, less exalted, officials.

An official’s liability to pay damages personally for mis-

conduct while in office is one of the tools that can, under cer-

tain circumstances, help ensure that the “official may not with

impunity ignore the limitations which the controlling law has

placed on his powers.” Butz v. Economou, 438 U.S. 478, 489

(1978). “In situations of abuse, an action for damages against

the responsible official can be an important means of vindi-

cating constitutional guarantees.” Jd. at 506.

Whether such an action is permissible against any particular

official, this Court has repeatedly made clear, turns on the

nature of his or her duties. Thus the Court has adopted what

it has called a “functional” approach to the immunity of fed-

eral officials for their official misconduct, Fitzgerald, 457

U.S. at 746, under which an immunity of “varying scope” is

granted to federal officials depending upon “the scope of dis-

cretion and responsibilities of the office and all the circum-

stances as they reasonably appeared at the time of the action

on which liability is sought to be based.” Scheuer v. Rhodes,

416 U.S. 232, 247 (1974).

In the application of these principles this Court has rec-

ognized the danger that the execution of certain public offices

might be disrupted if the prospect existed that the office-

holder might have to pay damages personally for his or her

official actions. Such liability, the cases say, could prevent the

officer from acting “with independence and without fear of

consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967),

9

quoting Bradley v. Fisher, 13 Wall. 335, at 349 note (1872)

See also Ferri v. Ackerman, 444 U.S. 193, 204-205 (1979)

(“[t}he point of immunity for [officials entirely shielded from

personal liability) is to forestall an atmosphere of intimidation

that would conflict with their resolve to perform their des-

ignated functions in a principled fashion”).

For this reason both state and federal judges have exactly

the same kind of immunity as the President of the United

States: they can never be held personally liable to pay dam-

ages for any officia: action taken within the scope of their

duties. Dennis v. Sparks, 449 U.S. 24 (1980). So do prose-

cutors, Burns v. Reed, 500 U.S. 478 (1991): Imbler v. Pacht-

man, 424 U.S. 409 (1976); grand jurors, Imbler, supra, 424

U.S. at 422-423; and other officers, both state and federal.

See, e.g., Tenney v. Brandhove, 341 U.S. 367 (1951) (state

legislators); Butz v. Economou, 438 U.S. at 513 (administra-

tive hearing officers); id. at 515 (government lawyers wield-

ing powers analogous to those of a prosecutor).

None of the other officers who possess this immunity from

personal damage suits for official acts has any protection,

however, temporary or permanent, from suits related to his or

her private conduct while holding office. This is so because

the considei ations barring personal liability for official acts

have no bearing on the individual's amenability to suit for pri-

vate conduct.

The brief submitted on the President's behalf nonetheless

contends that Fitzgerald barred personal liability for official

acts in part because the mere obligation to defend lawsuits—

any lawsuits—would be an improper drain on the President's

time. Similarly, the President's academic amici say Fitzger-

ald rested on several pillars, one of which was the drain on

presidential time caused by private litigation.

The Solicitor General, by contrast, explicitly acknow-

ledges that this argument is wrong: his brief admits that

Fitzgerald “did not implicate—and the Court accordingly did

10

not discuss—the potential conflicts between a sitting Presi-

dent's performance of his constitutional responsibilities and

the demands placed upon the defendant in a civil lawsuit.”

Brief for the United States as Amicus Curiae at 17.

The President’s characterization of Fitzgerald is further

undermined by the fact that no other immunity case is

founded on the rationale Mr. Clinton advances—and neither,

as the Solicitor General admits, is Nixon v. Fitzgerald: the

case simply does not say that an immunity from damages

actions should be created, even in part, because the mere fact

of being sued would distract the President from his execution

of his office. We submit that adoption of this argument would

be tantamount to an assertion that, while performing his

duties, the President is too busy to obey the law.

The Fitzgerald Court did indeed say that, “[bJecause 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.” Petitioner's

Br. at 20; Brief for the United States at 15; Brief Amicus

Curiae of Law Professors at 10, each quoting 457 U.S. at 751.

But the “diversion” of which the Court spoke is the diversion

of his attention a President would suffer if, in evaluating pos-

sible official actions, he had to worry that one option or

another might result in litigation in which he could be held

personally liable. The Fitzgerald Court barred only those

“private lawsuits” seeking to make the President pay out of

his own pocket damages allegedly caused by his official con-

duct. And the Court did so not because the President was too

busy to attend to the cases in which such a claim might be

made, so that he could not think about such cases and still

have time to perform his duties, but because the prospect of

the personal obligation to pay damages would distort his judg-

ment as he did his job:

As is the case with prosecutors and judges—for whom

absolute immunity is now established,—a President must

concern himself with matters likely to ‘arouse the most

intense feelings.’ Pierson v. Ray, 386 U.S., at 554. Yet,

as our decisions have recognized, it is in precisely such

cases that there exists the greatest public interest in pro-

viding an official ‘the maximum ability to deal fearlessly

and impartially with’ the duties of his office. Ferri vy.

Ackerman, 444 U.S. 193, 203 (1979). * * * Cognizance

of this personal vulnerability could distract a President

from his public duties, to the detriment of not only the

President and his office but also the Nation that the Pres-

idency was designed to serve.

451 U.S. 751 (emphasis added). The arguments on behalf of

President Clinton misapprehend this proposition, and attempt

to transform it into the far different assertion—which this Court

simply did not make—that private damages actions would force

the President to think about such cases instead of thinking

about his job. Neither Fitzgerald nor any other case of which

we are aware so holds. Rather, the language in these cases

about the burden of being a defendant reflects this Court’s con-

cern about the impact of litigation regarding official acts.’ Any

effort to make the cases say that the problem is litigation per se

must begin by taking the relevant language out of context.

3 :

The one difference between the other immunity cases and Nixon

v. Fitzgerald is that the possible harm from interference with the Presi -

dent's exercise of his discretion, caused by the imposition of personal lia-

bility for a faulty exercise of that discretion, is greater than it is from

such interference in the exercise of discretion by other office holders.

The concern about the unique scope of the President's duties, and of judi-

cial interference therein, is shared by the other cases dealing with judi-

cial review of discretionary official choices by the President himself, see

e.g., Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1868), and manifests

the courts’ traditional reluctance to review the substance of the Presi-

dent's official decision making unless it is absolutely necessary. The

short discussion in Part IV.B of this Court's Fitzgerald decision deals

with this principle, and the result in that case is, in part, based on this

consideration. See 457 U.S. at 754-755. But such reluctance has no place

in this case, which does not relate to the President's official actions.

12

It also ignores the Court's admonition in Fitzgerald that “the

sphere of protected action must be related closely to the immu-

nity’s justifying purpose.” 457 U.S. at 755.*

Since Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

$79 (1952), through United States v. Nixon, 418 U.S. 683

(1974), and extending beyond Nixon v. Fitzgerald, the lower

courts have come to agreement on the principle that the Pres-

ident is amenable to suit, even in his official capacity, when

his presence as a defendant is absolutely necessary. There is

now “no room for any difference [of opinion) as to the Pres-

ident’s amenability to legal process.” National Treasury

Employees Union v. Nixon, 492 F.2d 587, 612 (D.C. Cir.

1974). If a plaintiff is entitled to relief and relief can only

come from the President, the courts will require the President

to afford relief. See, e.g., id.; Romer v. Carlucci and Western

Solidarity v. Reagan, 847 F.2d 445 (8th Cir. 1988); Minnesota

Chippewa Tribe v. Carlucci, 358 F. Supp. 973 (D.D.C. 1973);

Atlee v. Nixon, 336 F. Supp. 790 (E.D. Pa. 1972).°

The President’s academic amici point out, correctly, that

such judicial second-guessing of official presidential actions

is to be avoided when possible; and indeed, both before and

after Fitzgerald, the courts have used a variety of other tech-

. The President's academic amici cite a concurrence by Justice

Scalia, in Franklin v. Massachusetts, 50S U.S. 788, 827 (1992), in sup-

port of their broad reading of presidential immunity. But Justice Scalia

argued only against the issuance of injunctive relief against the President

related to the execution of his duties, on the ground that “[i)t is incom-

patible with his constitutional position that he be compelled personally

to defend his executive actions before a court.”) /d. at 827 (emphasis

added). The considerations animating this position are identical to those

alluded to above, see n. 3 supra. As we explained there, those consid-

erations are irrelevant in this case because no official action Is at issue

here.

. A thorough and useful analysis of the relevant precedents, of

i j Account-

which there are many, is set forth in Ray, From Prerogative to

ability: The Amenability of the President to Suit, 80 Ky. L.J. 739 (1992).

12

~~

niques, including standing, ripeness, and the political question

doctrine, to avoid reaching the merits of cases against the

President.® Even the President's amici do not Say courts can

never assert jurisdiction over the President in a case about his

official duties.’ And to our knowledge no case holds that the

mere fact that he is President makes the Chief Executive

immune from a suit challenging his official acts. See also L.

Tribe, American Constitutional Law 278 (2d ed. 1988)

(rejecting the view “that the President [is] beyond the pale of

judicial direction”).

We urge this Court not to reach a conclusion, or to embrace

reasoning, inconsistent with this law. “In Marbury v. Madison,

1 Cranch (5 U.S.) 137, Mr. Chief Justice Marshall commented

(5 U.S. (1 Cranch) at 162-63) upon the impertance of pro-

viding an individual with a remedy when he is injured by a

violation of law and noted the availability of the King himself

in Great Britain as a defendant in such a situation.” National

Treasury Employees Union, supra, 492 F.2d at 609.* A deci-

6

A relatively complete collection of these arguments appears in

the various opinions in Goldwater v. Carter, 444 U.S. 996 (1979). None

of those opinions suggests that President Carter was immune from the

suit, which concerned his official action of terminating the United

States's treaty with Taiwan. Insofar as immunity is a threshold doctrine.

one would have expected to see it raised if the government thought it

applied.

7 On the contrary, Professor Tribe joined a group of other aca-

demics who signed the Memorandum Amicus Curiae of Law Professors

submitted in support of the plaintiff in Dellums v. Bush, 752 F. Supp.

1141 (D.D.C. 1990). The brief is reprinted at 27 Stanford J. Int’! L. 257

(1991). This submission argued that relief should be afforded directly

against the President of the United States, relating to the execution of his

warmaking responsibilities as Commander-in-Chief. Surely if the Pres-

ident is amenable to suit in his official capacity over such weighty issues,

there is no constitwsional bar to his being a defendant in this case. in

which relief will not relate in any way to the execution of his official

duties.

* A number of other precedents, both in and out of court, show

that Presidents have been directed to provide testimony. These authori-

14

sion that the President is not amenable to judicial process

would make achievement of this important goal impossible.’

Ill. SEPARATION OF POWERS PRINCIPLES REQUIRE

THAT THE PRESIDENT BE SHIELDED ONLY

FROM SPECIFIC DEMANDS ON HIS TIME THAT

WOULD ACTUALLY INTERFERE WITH HIS

DUTIES

Because we believe that Fitzgerald does not speak to the

question before this Court, we submit that the appropriate res-

olution of the President’s immunity claim should be guided by

other separation of powers cases, dealing with the President's

amenability to process and with the standards governing sep-

aration of powers disputes. Those standards, we submit, make

clear that this case should be permitted to go forward now.

Although the burdens of the presidency are great, there is

simply no longer room for the argument advanced in the col-

lection of quotations offered by the Solicitor General from

ties are directly relevant to the pending immunity claim, because they

speak to the question whether the President's duties prevent his com-

pliance with the orders of a court. The conclusion in each of these

instances was that his duties were no basis for excusing him from such

compliance. See generally I Ronald D. Rotunda and John E. Nowak,

Treatise on Constitutional Law: Substance and Procedure (West Pub.

2d ed. 1992) § 7.3. At § 7.1, the same Treatise lists voluntary and invol-

untary presidential appearances going back 200 years. See id. at 571-583.

9 — Significantly for present purposes, the government's response to

this development has been neither public protest nor explicit agreement,

but silent acquiescence. In the clearest and most elaborate appellate hold-

ing of which we are aware that the President can be named as a defendant

when necessary, the government obeyed a court of appeals decision

requiring the President to afford relief, and did not petition for certiorari.

National Treasury Employees Union, supra. This is consistent with the

fact that, before this Court as in the court below, the Solicitor General has

not joined in the constitutional argument advanced by the President's per-

sonal counsel. Inasmuch as one of the Solicitor General's most important

functions is to defend the Constitutional powers and prerogatives of the

presidency, his refusal to make this argument is quite telling.

15

scholars and the memoirs of presidents:'° as Chi

Marshall observed when he upheld the subpoena Far

Jefferson, the office’s “demand is not unremitting.” United

States v. Burr, 25 F. Cas. 30, 34 (CC Va. 1807)."' This Court's

cases dealing with the separation of powers, like lower fed-

eral court cases focused specifically on the President's

amenability to judicial process, make clear that the appro-

priate inquiry in evaluating a claim of presidential immunity

is whether the specific presidential conduct sought will actu-

ally interfere with the President's execution of the duties of

his office. A generalized assertion like the one offered here

that whole categories of cases pose too great a burden because

the President is too busy to attend to them, is not enough to

justify the suspension of personal responsibility for which the

President asks.

10 ;

See Brief of the United States as Amicus Curiae at 10-12.

President Jefferson is one of the authorities commonly cited

(see, e.g., Brief of Petitioner at 16; Amicus Brief of Law Professors at

13) for the proposition that Presidents are not amenable to judicial pro-

cess. Jefferson insisted no subpoena should have issued in Burr, and he

said his subsequent release of the documents there demanded was “vol-

untary.” See generally 9 The Writings of Thomas Jefferson (Ford ed.)

63-64. Chief Justice Marshall, however, disagreed with Jefferson; held

him amenable to process; and ordered him to produce the documents

Because “it is emphatically the province and duty of the judicial depart-

ment to say what the law is,” Marbury v. Madison, | Cranch (5 U.S.) 137

177 (1803), Chief Justice Marshall has prevailed in this disagreement,

which is why this Court followed his view, and n a .

, ’ ot Jefferson's,

States v. Nixon. See id., 418 U.S. at, e.g., 713. n's, in United

16

A. Under General Separation Of Powers Principles,

Immunity From Suit Regarding Private Conduct

Can Be Justified Only If President Clinton Can

Show That His Amenability To Suit Would Actu-

ally Interfere With The Fulfillment Of the Duties

Of His Office

As Justice Powell explained in his concurrence in /mmi-

gration and Naturalization Service v. Chadha, 462 U.S. 919,

963 (1983), “the [separation of powers] doctrine may be vio-

lated in two ways. One branch may interfere impermissibly

with the other’s performance of its constitutionally assigned

function. See Nixon v. Administrator of General Services, 433

U.S. 425, 443 (1977); United States v. Nixon, 418 U.S. 683

(1974). Alternatively, the doctrine may be violated when one

branch assumes a function that more properly is entrusted to

another.” The first of these two inquiries is the relevant one

here: President Clinton argues that subjecting him to suit

while in office would interfere unduly with the performance

of his official functions.

In Nixon v. GSA, the Court articulated this standard, and

applied it to resolve whether a challenged action “interfere[s]

impermissibly with [another branch’s] performance of its con-

stitutionally assigned function:”

in determining whether [a challenged act] disrupts the

proper balance between the coordinate branches, the

proper inquiry focuses on the extent to which it prevents

the Executive branch from accomplishing its constitu-

tionally assigned functions. United States v. Nixon, 418

U.S., at 71-712. Only where the potential for disruption

is present must we then determine whether that impact is

justified by an overriding need to promote objectives

within the constitutional authority of Congress.

433 U.S. at 443. See also Mistretta v. United States, 488 US.

361, 383 (1989) (question is “the extent to which [a provision

of law] prevents the Executive Branch from accomplishing its

17

constitutionally assigned functions”) (quoting Nixon v. GSA,

433 U.S. at 443).

In Nixon v. GSA the Court upheld a statute stripping former

President Nixon of control over his presidential papers,

because he could not show that the challenged provisions

would disrupt the conduct of duty by the Executive Branch.

Similarly, in United States v. Nixon, the Court required the

President to provide subpoenaed documents, in large part

because no specific claim had been made of a “need to protect

military, diplomatic or sensitive national security secrets.”

Rather, the claimed privilege was said to “depend[ } solely

upon the broad, undifferentiated claim of public interest in the

confidentiality of [presidential] conversations.” 418 U.S. at

706. This generalized assertion of privilege, this Court held,

had to yield to the prosecutor’s demand for information in

connection with a simple criminal trial.'2

Because no specific burden on President Clinton is yet at

issue in this case, these precedents require the Court to attach

significantly less weight to the President’s claim of immunity.

To demonstrate the need for protection from suit while in

office at this threshold stage of the case, the President must

12

Ignoring all of the above law, the President’s academic amici

assert that the burden is on the plaintiff to justify the assertion of judicial

power over the Mr. Clinton, and they quote a line from United States v.

Nixon in which the Court explained that it had ordered Mr. Nixon to pro-

duce evidence because there had been a “demonstrated, specific need for

evidence.” Brief Amicus Curiae of Law Professors at 13. Amicis’ use of

this short quote ignores the central fact that this Court in that case had

required such a showing only after it had satisfied itself. by reviewing a

number of directly applicable precedents, that a presidential privilege

existed (in the confidentiality of official papers). Once such a privilege

is found to exist, a party seeking to overcome it must indeed explain why

the privilege has to yield. Here, however, the issue is the antecedent

question whether the immunity claimed exists in the first place. The law,

as we discuss above, is that, to prove the existence of this or any other

privilege, the party asserting it must show why it is necessary to enable

him to carry out his official duties. The assertion to the contrary by the

President's amici is thus incorrect.

18

offer more than a hypothetical assertion of interference with

his ability to perform his constitutionally assigned functions.

If this litigation proceeds and the President complains of

undue burden, the district court has ample discretion to adjust

the proceedings for good cause, to consider motions to limit

discovery, and otherwise to protect the presidency.

B. Cases Dealing With The President’s Amenability

To Process Also Require The President To Make

A Specific Showing Of Conflict With His Duties

In Order To Escape Any Particular Court Order

When Chief Justice Marshall upheld the subpoena to Pres-

ident Jefferson, he noted that a court can protect the President

from being harassed by vexatious and unnecessary subpoenas

by its conduct after rather than before issuance. United States

v. Burr, 25 F. Cas. 30, 34 (CC Va. 1807). See also United

States v. Poindexter, 732 F. Supp. 142, 146 (D.D.C. 1990)

(while “it is settled that a President, whether former or incum-

bent, may be subpoenaed to be a witness in judicial pre-

ceedings in an appropriate case,” courts have attempted to

exercise this power in a way that would be least damaging to

the Presidency or onerous to the particular individual occu-

pying the Office, to the extent that this was possible and con-

sistent with the rights of the litigant who was in need of such

testimony”). This approach “balances the accountability of

the President with the practical demands of his office; it gives

the courts the discretion to evaluate a President's claim of

hardship in the context of particular demands and to adjust his

ordinary obligations to the legal system in light of those hard-

ships.” Ray, supra, 80 Ky L.J. at 812.

This approach fits with the way this Court has analyzed

other, analogous separation of powers problems, see Nixon v.

GSA, supra; Mistretta v. United States, supra, and we there-

fore submit that this is in fact the appropriate inquiry: to

avoid a particular kind of judicial process President Clinton

must point to a specific form of interference in the conduct of

19

his duties that would be caused if such process issued.'* A

mere general assertion that he will be forced to spend all of

his time attending to private legal obligations is not suffi-

cient.'*

13 Once he identifies a specific action required of him, however,

and a specific reason why he cannot perform it, the proof he need offer

to justify adjustment of the burden need not be overwhelming. In United

States v. Nixon the Court emphasized that it would show “the utmost def.

erence” when national interests are asserted as a reason for the courts to

lift a litigation burden from the President. 418 U.S. at 710. Similarly, a

district court should alter the timing or scope of discovery sought from

the President on the basis of his assertion of “a facially legitimate and

bona fide reason” for such a change. See, e.g., Kleindienst v. Mandel. 408

U.S. 753, 770 (1972). Consistently with this standard, the courts have

quite properly been deferential to a President's assertion that a particu-

lar presidential action cannot be performed as, or when. requested. See

infra Part IV.

" It is within Congress's power under the Necessary and Proper

clause of Article I to authorize other protection for the President if the

legislature were to deem it necessary, such as indemnifying the President

from the costs of a civil suit if he prevails. (A similar protection is

afforded by the Ethics in Government Act, 28 U.S.C. § 593(f).) The leg-

islature exercised this very power when it enacted the Soldier’s and

Sailor's Civil Relief Act of 1940, 50 U.S.C. app. §§ 501-91. That act—

which does not protect the President or other civilians who govern the

military, such as the Secretary of Defense—represents the sort of immu-

nity for which the President asks.

Congress's decision not to insulate the President in this way should be

respected. As Justice Jackson explained in his concurrence in Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (emphasis added),

the President's powers are at their lowest level when he claims prerog-

atives “incompatible with the expressed or implied will of Congress.” We

submit that the legislature's decision not to protect the President from

civil suit, even temporarily during a period of national emergency, rep-

resents a judgment that should not be second-guessed by this Court.

Finally, we note that Congress is also the appropriate source of any

protection necessary from the possibility that the action of a state court

might threaten the office of the presidency or the fulfillment of presi-

dential duties. The current removal provision, 28 U.S.C. § 1442, autho-

rizes the removal of certain actions against federal officials. The doctrine

of protective jurisdiction may well go further than this statute. as the

20

IV. A WIDE VARIETY OF TOOLS IS AVAILABLE TO

THE COURT TO PREVENT THE USE OF LITIGA-

TION AS A TOOL OF HARASSMENT

There is probably no federal court in which baseless cases

have not been filed against public officials for improper

motives, including even the plaintiffs’ opposition to the

defendants’ substantive policies. See, e.g., Saltany v. Reagan,

886 F.2d 438 (D.C. Cir. 1989) (damages action against, inter

alia, President Reagan and British Prime Minister John Major

for their order that certain targets in Libya be bombed). Many

such cases can be dismissed for failure to state a claim. See

id.. Komasinski v. Internal Revenue Service, 588 F. Supp. 974

(N.D. Ind. 1984) (dismissing suit for failure to state a claim

and for bad faith in using a complaint to advance a political,

rather than a legal claim).'* In addition, if appropriate, sanc-

tions may be imposed on the litigants and/or their counsel.

See Saltany, 886 F.2d at 440; Komasinski, 588 F. Supp. at 979

(requiring individual plaintiff to pay attorney's fees to gov-

ernment defendants because action was brought “for philo-

sophical reasons rather than because of a sincere belief that a

right had been violated”).’*

Solicitor General acknowledges. See Brief of the United States at 29, n.

20. Even if neither of these tools were sufficient to protect any presi-

dential interest actually endangered by a state court suit, Congress is

clearly empowered to extend federal removal jurisdiction to include such

cases.

9 See also 28 U.S.C. § 1915(d) (authorizing dismissal of in forma

pauperis cases when the court is satisfied that the action is frivolous or

malicious).

'6 President Clinton argues that the mere act of opening the court-

house door to private actions will cause an avalanche of such cases, and

that people who are substantively opposed to a particular President's plat-

form will use the courts to attempt to embarrass the President politically

and to frustrate his efforts to implement the platform on which he was

elected. The President implies that this case is indeed such an effort.

We note, however, that there has been no such deluge until now. We

perceive no basis for predicting one in the future. Moreover, we have no

21

The standard rules governing the subjection of the Presi-

dent to legal process are also capable of dealing with cases

alleging conduct witnessed only by the plaintiff and defen-

dant, and which may therefore be more difficult to dispose of

on a threshold motion. Indeed, Section 1983 claims are often

brought for actions witnessed only by the plaintiff and defen-

dant—an archetypical example is the charge of police bru-

tality. The courts have responded to this problem not by

barring such cases but by imposing heightened pleading

requirements and by an increased willingness to dispose of

such cases on summary judgment. See, e.g., Arnold v. Jones,

891 F.2d 1370 (8th Cir. 1989); Martin v. Malhoyt, 830 F.2d

237, 254 (D.C. Cir. 1987).'’ There is no reason why analogous

requirements could not be imposed here. Similarly, discovery

from the President might only be permitted if a plaintiff can

offer corroboration of some kind that his or her claims have

a factual basis.

way of knowing what the plaintiff's reasons are for prosecuting this case.

We believe strongly, however, that they are irrelevant to the question now

before this Court. If it is meritorious, this case should go forward, and the

plaintiff should prevail, on the same time schedule she would face if she

were suing anyone else, subject to the adjustments that are demonstrably

necessary to accommodate the President's duties—adjustments, we wish

to emphasize, that courts can and should make. If the case is meritless.

and instead a political vendetta of some kind, the courts have many estab-

lished tools for dealing with it, which are used often and successfully

against baseless cases brought for improper motives against public offi-

cials. Use of these tools is vastly better than the law the President asks

this Court to make: that he is unaccountable for his private actions pre-

cisely when his power is at its zenith.

oY While a heightened pleading requirement was rejected in

Leatherman v. Tarran County Narcotics Intelligence and Coordination

Unit, 507 U.S. 163 , 166 (1993) for municipalities, this Court noted that

“unlike various government officials, municipalities do not enjoy immu-

nity from suit—either absolute or qualified—under § 1983.” See, e.¢.,

Schultea v. Wood, 47 F.3d 1427 (Sth Cir. 1995) (suggesting that a plain-

tiff against whom qualified immunity has been invoked can be required

to file a reply, pursuant to Fed.R.Civ.P. 7, explaining why the immunity

does not apply on the facts at issue).

22

In the same vein, it has long been the law that discovery

from the President may only be had if no other source is

available for the same material. See, e.g., United States v.

North, 713 F. Supp. 1448, 1449 (D.D.C. 1989); United States

v. Mitchell, 385 F. Supp. 1190 (D.D.C. 1974), aff'd sub nom.

United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (per

curiam), cert. denied, 431 U.S. 933 (1977); cf. United States

v. Burr, 25 F. Cas. 187, 192 (CC Va. 1807) (the party seeking

documentary discovery from the President must clearly estab-

lish its materiality). Indeed, changes made to Federal Rules of

Civil Procedure 26-37 by the 1983 and 1993 amendments

empower—and indeed oblige—the district courts to prevent

harassing discovery against any party, even one less exalted

than Mr. Clinton.

Similarly, the President’s personal attendance at a trial has,

to our knowledge, never been required; now that videotape

depositions are available there is little reason to expect that

such attendance would ever be necessary in any but the most

singular circumstances. See United States v. Fromme, 405 P.

Supp. 578 (E.D. Cal. 1975).'* Documents subpoenaed from

the President are routinely scrutinized in camera for rele-

vance, as required by United States v. Nixon, and nonre-

sponsive material is not turned over to the discovering party.

United States v. Nixon, 418 U.S. at 715-716; United States v.

Poindexter, 732 F. Supp. 135 (D.D.C. 1990). In Poindexter,

President Reagan was also given the unusual right to have his

\8 The President's personal counsel argue that, as a practical mat-

ter, the accusations in this case are so important that he will have to

attend the trial, and devote substantial personal time to preparation, even

though he will not be legally obliged to do so. As this argument acknow!l-

edges, however, this is a function of the importance of the allegations Ms.

Jones has made: if the allegations had been made in some other forum,

such as a book or magazine article, their rebuttal would presumably also

require the President's attention. Clearly the President cannot be shielded

from most such demands on his time. The fact that these allegations hap-

pen to take the form of litigation does not, we believe, make them any

different.

23

counsel review the defendant's ex parte submissions to the

court setting out his discovery plan and defense strategy. 732

F. Supp. 163, 164 (D.D.C. 1990)."

Similarly, in Degan v. United States, 116 S.Ct. 1777 (1996)

this Court noted that “the District Court has its usual author-

ity to manage discovery in a civil suit, including the power to

enter protective orders limiting discovery as the interests

of justice require. Fed.Rule Civ. Proc. 26(c).” Jd. at 1782. In

language directly applicable to this case, in which immunity

has been claimed at the very outset of the proceeding and on

an entirely empty record, the Court observed that “the details

of these [protective] steps are committed to the discretion of

the district court; it would be premature to consider now the

precise measures the court should adopt as the case pro-

ceeds.” /bid.

The president argues that even allowing a district court to

use these discretionary tools will provoke a constitutional

confrontation between the executive and judicial branches:

his proposed solution is to avoid the confrontation by having

the courts yield entirely for as long as he occupies the White

House. The argument is wrong-headed for two reasons. First.

19 ; ane

The availability of these unique protections shows that analogy

to the criminal context, which both the President and the Solicitor Gen-

eral offer as a tool for analysis, is inappropriate. Criminal prosecution of

a sitting President is problematic because imprisonment would quite

clearly prevent the President from doing his job. A flexible order that, at

some time convenient to the President, he sit for his deposition, is sim-

ply not the same thing. This President and others have in fact been ques-

tioned in legal proceedings without any untoward consequences. And it

is Important to observe that no other Order normally issued in a civil trial

would compel the personal attendance of any individual party (including,

of course, the President) at any hearing or other event. There is thus lit-

tle danger that the trial court would ever have any need to make an

extended or burdensome demand on the President's time. And yet only

such 4 demand could give rise to the kind of problem that the President

and his amici say make this case an impermissible threat to the execution

of his official duties.

24

no constitutional confrontation will arise between the two

branches, so long as the trial court before which the action is

pending is appropriately deferential of the President s

duties—and if the trial court were to mistakenly fail to pro-

vide such deference, a mandamus petition would clearly be

the appropriate recourse. Such procedure, we believe, is

vastly superior than the blanket rule that those people injured

by someone who later becomes President are stripped of the

right even to gather the evidence they will need to prove their

claim for as long as the person who injured them remains in

office.

The President’s argument is also misguided because it

ignores this Court’s consistent warning of the danger of

allowing a single branch to determine unilaterally the scope

of its own inherent powers. “The extent of [inherent] powers

must be delimited with care, for there is a danger of over-

reaching when one branch of the Government, without benefit

of cooperation or correction from the others, undertakes to

define its own authority.” Degen, 116 S.Ct. at 1780. A

[branch’s] inherent power is limited by the necessity giving

rise to its exercise.” If there is “no necessity to justify the

exercise of inherent power at issue, then it is not permissible.

Id. at 1783.

MPORAL IMMUNITY PRESIDENT CLIN-

se be ‘SaEks IS FUNDAMENTALLY INCONSIS-

TENT WITH THE CONSTITUTION’S EFFORT TO

ENSURE THAT ALL OF THE POWERS IT CON-

FERS ARE CHECKED AND BALANCED

Perhaps the most important theme of the Constitution's sep-

aration of powers is that every grant of power must be coun-

terbalanced by an effective, contemporaneous, corresponding

restraint: the doctrine pervades the architecture of the Con-

stitution in order “to provide avenues for the operation of

checks on the exercise of governmental power. Bowsher v.

Synar, 478 U.S. 714, 722 (1986). One profoundly important

25

restraint binding the President, who participates in the cre-

ation of federal law and superintends its execution, is that he

is bound by that law equally while he wields those great pow-

ers as when he does not. The provisions invoked in the

complaint in this case—42 U.S.C. § 1983, and the Equal Pro-

tection and Due Process clauses of the Fourteenth Amend-

ment—are part of this law. For precisely this reason “[n]o

man in this country is so high that he is above the law. No

officer of the law may set that law at defiance with impunity.

All the officers of the Government, from the highest to the

lowest, are creatures of the law, and are bound to obey it.”

Davis v. Passman, 442 U.S. 228, 246 (1979), quoting United

States v. Lee, 106 U.S. 196, 220 (1882).

Obedience is enforced by the courts, often at the behest of

the people the law was designed to protect, rather than by the

government acting on their behalf. The President's obedience

is no less necessary—and no less important to the Nation—

because compelled in this way. As Senator Pinckney

explained from the well of the Senate many years ago, com-

menting on his own and his colleagues’ work at the Federal

Convention with respect to the question of the immunity

accorded federal officials:

[The Federal Convention] never meant that the body who

ought to be the purest, and the least in want of shelter

from the operation of laws equally affecting all their fel-

low citizens, should be able to avoid them: they therefore

not only intended, but did confine their privileges within

the narrow limits mentioned in the Constitution.

3 M. Farrand, The Records of the Federal Convention of 1787

at 385 (1966).

CONCLUSION

Although the separation of powers doctrine exists as our

“greatest security against tyranny,” Mistretta v. United States,

26

488 U.S. at 381, many disputes about the doctrine are far

removed from any real threat of the exercise of unconstrained

power. See, e.g., Bowsher v. Synar, supra; Commodities

Futures Trading Commission v. Schor, 478 U.S. 833 (1986).

The temporal immunity President Clinton claims here, how-

ever, would eliminate the only mechanism that now formally

enforces his obedience to the law he is empowered to execute

for the entire time he holds that great power in his hands. The

important laws at issue in this case are among those he is

charged with enforcing, and there is no reason why he should

be able to shield himself now from accountability.

This Court’s cases clearly place upon the President the bur-

den to explain why the license he seeks is necessary. We

believe he has not borne that burden. Rather than issuing one

broad-brush ruling, liberating this President and every suc-

cessor from the obligation to respond in court like everyone

else, we submit that this Court should require the President to

explain how any particular demand of him in this case would

interfere with his ongoing obligations. Instead of categorically

consigning this plaintiff to legal limbo for years, the trial

court can then use its discretion to prevent any disruption of

the presidency from this plaintiff's efforts to enforce her

rights.

Respectfully submitted,

Ronald D. Rotunda

Counsel of Record

Albert E. Jenner, Jr.

Professor of Law

University of Illinois

College of Law

Champaign, IL 61820

(217) 333-3459

Stephen B. Burbank

David Berger Professor

for the Administration of

Justice

University of Pennsylvania

Law School

3400 Chestnut Street

Philadelphia, PA 19104

William Cohen

C. Wendell and

Edith M. Carlsmith

Professor of Law

Stanford University

Palo Alto, CA

Geoffrey P. Miller

Professor of Law

New York University

Law School

40 Washington Square South

New York, NY 10012

Robert F. Nagel

Ira Rothgerber Professor

of Constitutional Law

University of Colorado

Law School

P.O. Box 409

Boulder, CO 80309

Richard Parker

Professor of Law

Harvard Law School

Cambridge, MA 02138

L. A. Scot Powe, Jr.

Anne Green Regent

Professor of Law

University of Texas

Law School

727 E. 26th Street

Austin, TX 78705

Stephen B. Presser

Raoul Berger Professor

of Legal History

Northwestern University

School of Law

375 E. Chicago Avenue

Chicago, IL 60611

William Van Alstyne

William R. and

Thomas C. Perkins

Professor of Law

Duke University

School of Law

Durham, NC 27708