Douglas R. Cox*
An alleged 1991 encounter between Paula Corbin Jones, an Arkansas
state employee, and then-Governor Bill Clinton in a Little Rock
hotel room, may seem an unlikely starting point for constitutional
litigation of great moment. Yet when Ms. Jones sued Mr. Clinton
in 1994 to rebut press reports that they had engaged in a sexual
relationship, Mr. Clinton responded with an assertion that the President's
unique role under the Constitution requires that he be deemed "temporarily
immune" from civil suit so long as he served as President --
even for plainly unofficial acts, committed before he became President.
When the Eighth Circuit Court of Appeals disagreed with this argument,
Mr. Clinton sought certiorari review, and the Supreme Court agreed
to hear the case in its October 1996 term.
Mr. Clinton has already succeeded in obtaining crucial tactical
relief: thanks to the Supreme Court's decision to hear the case,
he will not need to respond under oath to Ms. Jones' allegations
until after the November 1996 election. Indeed, there is a substantial
chance that the Supreme Court will never rule on the merits of the
petition. If Mr. Clinton loses the election, for example, his case
may well be deemed moot. But in any event, Clinton v. Jones is unlikely
to lead to a great expansion of presidential immunity.
In his certiorari petition, Mr. Clinton describes the immunity
he seeks as "modest" and "limited," merely requiring
that suits against him be postponed "until he leaves office."
Petition at 9. This immunity has no explicit basis in the constitutional
text but must be implied, he asserts, because the mere pendency
of lawsuits will "impos[e] on his capacity to carry out his
constitutional responsibilities." Id. Even were a court to
schedule discovery and hearings with extreme deference to the President's
schedule, the constitutional problems would remain because, according
to Mr. Clinton, that would give "a trial court the general
power to set priorities for the President's time and energies."
Id. at 8.
Mr. Clinton's immunity argument is policy-driven, but so is much
of the Supreme Court's jurisprudence in the immunity area. In Nixon
v. Fitzgerald, 457 U.S. 731 (1982), the Supreme Court (over strong
dissents) recognized an absolute presidential immunity for official
acts, largely for policy reasons. 457 U.S. at 756. The Court was
concerned that the absence of presidential immunity for official
acts "could distract a President from his public duties, to
the detriment not only of the President and his office but also
the Nation that the Presidency was designed to serve." Id.
at 753. In crafting presidential immunity, however, the Court applied
those principles that had guided it in fashioning rules of immunity
for other government officials. Judges and prosecutors, for example,
had been afforded absolute immunity at common law for their official
acts, precisely because in the absence of immunity such officials
will not be able to carry out their functions, for fear that each
official decision will result in liability. Society benefits when
judges and prosecutors perform their jobs, and that benefit outweighs
the value ordinarily given to affording each citizen a remedy. Id.
at 746-47. Although there was of course no precise common law model
for the office of President, the Court readily found that the President's
functions were sufficiently varied, sensitive and important that
the Presidency should be afforded a similar immunity. The Court
emphasized that the scope of immunity "must be related closely
to the immunity's justifying purposes," and that presidential
immunity extended no further than "acts within the `outer perimeter'
of [the President's] official responsibility." Id. at 755-56.
The Court in Fitzgerald thus based its recognition of presidential
immunity on common law principles that granted immunity for certain
important and sensitive official functions; and then limited the
scope of immunity by tying it tightly to the necessity to protect
those functions. Mr. Clinton attempts to separate these two elements
of the Court's decision in Fitzgerald, by arguing that Fitzgerald
justifies immunity when either official decisionmaking needs protection
from suit, or the threat of litigation would be distracting. Petition
The reasoning and careful language of both the majority and the
dissents in Fitzgerald, however, and the tradition of common law
immunity on which the majority drew, suggest that Mr. Clinton's
immunity claims will be rejected by the Court. There is of course
no common law tradition of the sort of temporary-but-absolute immunity
for which Mr. Clinton argues; nor does society have a strong interest
in insuring that would-be Presidents are free to misbehave in hotel
rooms. As the Eighth Circuit noted, the Court's struggle in Fitzgerald
to find presidential immunity even for official acts "belies
the notion . . . that beyond this outer perimeter there is still
more immunity waiting to be discovered." 72 F.3d 1354, 1359
(8th Cir. 1996); see also Fitzgerald, 457 U.S. at 759 (Burger, C.J.,
concurring) (Presidents "are not immune for acts outside official
Given the Fitzgerald Court's insistence that immunity flow from
common law traditions and be tightly tied to the performance of
official duties -- and the skepticism toward even that limited scope
of immunity expressed by the Fitzgerald dissenters -- it is difficult
to envision that the current Court would adopt Mr. Clinton's argument
to extend presidential immunity to unofficial acts, solely on the
ground that such an extension is necessary to save the President
from the distraction of litigation.
But even if the Court were to agree to extend Fitzgerald, it is
likely that the significance of such a decision would be short-lived.
The Court in Fitzgerald was careful to emphasize that its decision
took place "in the absence of explicit . . . congressional
guidance." Id. at 747; see also id. at 748 n.27 ("we need
not address directly the immunity question as it would arise if
Congress expressly had created a damages action against the President
of the United States. . . . Consequently, our holding today need
only be that the President is absolutely immune from civil damages
liability for his official acts in the absence of explicit affirmative
action by Congress."). Although the dissenters and the Chief
Justice rejected this limitation, it was obviously an important
element in the majority's analysis.
Ms. Jones' federal claims rely upon 42 U.S.C. §§ 1983
and 1985; she also asserts claims under Arkansas common law. The
federal statutes are silent on the question of presidential immunity.
Thus, even if the Supreme Court agrees with Mr. Clinton, Congress
could try to overturn the result, at least for future cases, by
providing explicitly that Presidents may be sued for their unofficial
acts. Indeed, the 1996 Republican Party Platform already promises
that the Soldiers' and Sailors' Civil Relief Act of 1940 -- which
Mr. Clinton's petition notoriously suggested provides an analog
to the temporary immunity he seeks, id. at 14 -- will be amended
to make it plain that Presidents cannot invoke its stay provisions.
Under the reasoning of Fitzgerald, similar amendments to title 42
should suffice to insure that future presidents cannot invoke immunity
for their unofficial acts. The Court would remain free to find that,
despite such congressional action, Presidents nonetheless enjoy
absolute, Constitution-based immunity for their unofficial acts
that cannot be limited by statute; but the Court's immunity jurisprudence
to date suggests that there is little likelihood of such a result.
For those who believe that the Constitution mandates a strong executive
there remains, of course, the possibility that Mr. Clinton's policy
argument is right, and that some future President could be deluged
with meritless, partisan-inspired litigation designed to humiliate
and distract the Chief Executive. There is some solace in the fact
that Presidents before Mr. Clinton have been targets of partisan
anger, but have not found themselves facing litigation about their
private, unofficial misconduct. Indeed, Mr. Clinton's immunity defense
is one that no other President has ever felt the need to advance.
But should Mr. Clinton's successors ever face such a deluge of
suits, the remedies are obvious. Every court to discuss Mr. Clinton's
immunity arguments has agreed that Article III judges need to be
extremely sensitive to presidential scheduling concerns; and in
truly extreme circumstances, Congress could be expected to respond
with appropriate legislation, giving Presidents explicitly the "temporary
immunity" that Mr. Clinton tries to imply.
*Of Counsel, Gibson, Dunn & Crutcher, Washington, D.C.