The Political Interest

By Michael Kramer

"Leave him alone." In plain English those three words sum up the case Bill Clinton's attorney will soon argue in his effort to defer Paula Jones' sexual- harassment lawsuit until the President leaves office. The drift of lawyer Robert Bennett's thinking has been known for some time, but sources familiar with the latest version of his brief, and the impressive appendix of historical writings that supports it, have provided TIME with the details of Bennett's argument. The key points, which highlight the inextricable connection of political and legal considerations, are these:

1) The Jones lawsuit is a case of first impression, meaning that the courts have never before been asked to rule on the essential question: Does presidential immunity extend to conduct allegedly undertaken before a Chief Executive assumes office? Bennett will assert that the logic applied by the Supreme Court in its 1982 ruling in Nixon v. Fitzgerald should apply here as well. (After telling Congress that cost overruns on the C-5A transport plane could reach $2 billion, Ernest Fitzgerald, an Air Force management analyst, was fired. President Nixon took responsibility for his dismissal, and Fitzgerald sued Nixon for damages.) In Fitzgerald, the court held that a President is absolutely and forever safe from lawsuits attacking his official acts. "Because of the singular importance of the President's duties," the court said, "diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government."

The decision to seek delay, rather than dismissal, is a political one. "Arguing that Jones' claim should be thrown out for good would be a public relations disaster," says a Clinton adviser. "Postponement permits her to go forward later and affirms the principle that the President is not a king, that + nobody is above the law."

2) If Jones proceeds now, Bennett plans to argue, the decision could inspire copycat lawsuits. In Fitzgerald, Chief Justice Warren Burger was worried that uncontrolled litigation, which sometimes is used as "a mechanism of extortion," could spur a President's political opponents to file suits simply to distract him from his duties. After quoting Burger, Bennett's draft says "one can readily imagine" further claims, "especially involving unwitnessed one-on-one encounters that are exceedingly difficult to disprove. Moreover, given the moral annihilation approach to modern politics, one can easily envision political operatives recruiting putative plaintiffs to embarrass a President."

3) Bennett will warn of another dubious motivation for such lawsuits: fame. "When the defendant is the President," the draft brief argues, "instant celebrity status is conferred simply by filing the complaint, and this notoriety may be lucrative in and of itself -- for both client and lawyer." This is why Bennett wants to argue that Jones-type lawsuits should be prohibited from even being filed during a President's tenure. If suits are lodged and then stayed, he says, plaintiffs will "be all over telling their ridiculous stories without ever being put to their proof." Bennett is "dead right about the reality," says an Administration lawyer, "but as a political matter, making that argument to the court is part of the 'No person's above the law' problem. In the end, we may decide that people should at least be allowed to file claims so that it doesn't seem like we're trying to refuse them the right to seek relief, even though all we're really arguing for is delay."

4) Bennett would leave room for certain lawsuits to proceed when immediate redress is required. White House Special Counsel Lloyd Cutler has suggested the example of a child-support action, where the harm should be mitigated as soon as possible. "Exceptional circumstances might warrant a deviation from the general rule of presidential immunity," the draft brief says, but "such facts are not presented" in the Jones complaint, "and the court therefore need not address them."

5) Bennett will also claim that the public has an interest in deterring Chief Executives from contesting suits. "A President facing a politically motivated private civil suit," the draft says, "may choose to defend such a suit to salvage his political career, at the expense of attending to more important responsibilities."

6) Finally, Bennett will urge that Jones' case against Arkansas state trooper Danny Ferguson be similarly delayed. Jones has fingered Ferguson as the man who summoned her to a hotel-room meeting with Clinton, but in the trooper's sworn answer to her complaint, he has admitted only that he "pointed out a particular room" where Jones alleges Clinton sought sex with her. Since the Ferguson case would invariably involve Clinton as a witness, Bennett believes the same distraction arguments apply.

As with many difficult legal questions, the rationale for delaying Jones' suit involves a balancing of interests. "Sure it's unfair to her or to similar plaintiffs," says University of Southern California law professor Susan Estrich. "She and they will suffer from waiting for their claims to be adjudicated. But permitting the President to focus on his job is more important." On this crucial point, Bennett's arguments are cogent and persuasive. This is not to say that Jones' charges are false. Given Clinton's personal behavior, which he himself has described as having caused "pain" in his marriage, one can't dismiss Jones' story out of hand. Clinton himself may not deserve the break he seeks, but the presidency does.