Republicans have been portraying President Clinton as a Vietnam War draft dodger who is now trying to use his position as commander-in-chief of the armed forces of the United States to delay a sexual harassment suit against him until he leaves office. In this May 28, 1996 legal brief to the U.S. Supreme Court, the president claims that he is not seeking protection under the 1940 Soldiers and Sailors Civil Relief Act, which protects active-duty military personnel from having to defend themselves in civil suits.
May 28, 1996
No. 95-1853
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1995
WILLIAM JEFFERSON CLINTON,
Petitioner,
vs.
PAULA CORBIN JONES,
Respondent.
On Petition For A Writ of Certiorari
To The United States Court of Appeals
For The Eighth Circuit
REPLY BRIEF FOR THE PETITIONER
Robert S. Bennett
Counsel of Record
Carl S. Rauh
Alan Kriegel
Amy R. Sabrin
Stephen P. Vaughn
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM
1440 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-7000
Of Counsel:
David A. Strause
Geoffrey R. Stone
1111 East 60th Street
Chicago, Illinois 60637
(312) 702-9601
Attorneys for the Petitioner
President William Jefferson Clinton
TABLE OF CONTENTS
TABLE OF AUTHORITIES
REPLY BRIEF FOR THE PETITIONER
TABLE OF AUTHORITIES
Cases
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ... 3
Franklin v. Massachusetts, 505 U.S. 788 (1992) ... 9
National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C.
Cir. 1973) ... 9
Nixon v. Fitzgerald, 457 U.S. 731 (1982) ... passim
United States v. McDougal, No. LR-CR-95-173 (E.D. Ark. Mar.
20, 1996) ... 6
United States v. Nixon, 418 U.S. 683 (1974) ... 7, 9
United States v. North, 713 F. Supp. 1448 (D.D.C. 1989) aff'd 910
F. 2d 843 (D.C. Cir. 1990), cert denied, 500 U.S. 941 (1991 ... 6
United States v. Poindexter, 732 F. Supp. 142 (D.D.C. 1990) ... 6
Statutes
Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app.
Sections 501-525 (1988 & Supp. V 1993) ... 8
Other Materials
Brief for Respondent A. Ernest Fitzgerald, Nos. 78-1783 and 80-
945 (Sup. Ct. filed Oct. 29, 1981) ... 8
REPLY BRIEF FOR THE PETITIONER
The President's submission is straightforward: No President has
ever before been compelled to submit to a civil damages action,
directed personally against him, during his term in office. A
decision with such serious ramifications for the Presidency and the
nation should not be allowed to stand without this Court first
considering the President's contention, founded on both the Court's
decisions and statements by the Framers, that such lawsuits must in
all but the most exceptional cases be deferred until the President
leaves office.
Respondent does not -- indeed, cannot -- identify a single instance
in which a court has compelled an incumbent President to defend a
damages action directed at him personally. Nor does respondent
explain why a fragmented panel of the court of appeals, rather than
this Court, should decide the extraordinarily important
constitutional question of whether a President may be compelled to
do so. Instead, respondent's principal contentions are (i) that this is
a "one-of-a-kind case" that can be litigated without interfering with
the President's conduct of his office (Br. in Op. 8); (ii) that
separation of powers principles permit a trial judge to require,
review an sometimes reject -- specific showings by the President
that a matter of state is sufficiently significant to justify altering the
litigation schedule (Br. in Op. 12-14); (iii) that Nixon v. Fitzgerald,
by providing Presidents with absolute immunity from liability for
conduct within the "outer perimeter" of official duties, somehow
precludes deferral of this litigation (Br. in Op. 16-18); and (iv) that
this nation's historic traditions pose no bar to subjecting an
incumbent President to civil damages litigation (Br. in Op. 19-20).
Respondent is wrong at each turn.
1. This case is evidence, if any is needed, of the wisdom of the
Court's observation in Nixon v. Fitzgerald that "the sheer
prominence of the President's office" makes him "an easily
identifiable target for suits for civil damages." 457 U.S. 731, 752-
53 (1982). Respondent's brief in opposition characterizes this
lawsuit as a "very simple dispute about what happened in a very
short encounter between two people in a room," and one in which
"[d]iscovery and trial... will not be burdensome." Br. in Op. at 10.
The record, however, reveals that respondent's attorneys in fact
intend to use this case as a vehicle for a far-reaching inquiry:
We'll be able to ask the President certain pertinent questions....
Was this a pattern of conduct that involved the use of police for
private functions that would not be... part of their duty? Are there
other women involved? Who are they?... [A]ll is on the table in the
discovery deposition, including evidence that can lead to
admissible evidence. So it's a pretty wide-ranging effort....
C.A. App. 122-23 (Tr. of ABC's Nightline (Dec. 28, 1994)).
Respondent's counsel also stated that they will "exhaustively
pursue" this line of inquiry with other witnesses, and may seek to
compel an unprecedented physical examination of the President.
C.A. App. 117-18 (Tr. of CNN's Daybreak (Dec. 29, 1994)).
Respondent, in other words, envisions litigation that not only
threatens the President with $700,000 in damages and seeks to
impugn his reputation, but that is specifically calculated to
entangle him in the "discovery deposition" process. In addition,
the district court found that discovery could not be conducted on
even the claims against the President's co-defendant "without the
heavy involvement of the President through his attorneys." Pet.
App. 76. The inevitable consequence of such purportedly
"uncomplicated" litigation (Br. in Op. i) will be substantially to
divert the President from his Article II responsibilities.
It takes but a single lawsuit of this kind, in Fitzgerald's words, to
"distract a President from his public duties, to the detriment of not
only the President... but also the Nation that the Presidency was
designed to serve." 457 U.S. at 753. That danger is especially
great in the modern setting, where wide-ranging discovery is
permitted and instantaneous, nationwide publicity is routinely used
as a tool by litigants.
Moreover, the dangers of abuse of litigation against an incumbent
President are not limited to a single case. Respondent reiterates the
panel majority's conception that "the universe of potential
plaintiffs" who might sue an incumbent President -- for reasons of
partisanship, extortion, or publicity-seeking -- is "small[]." Br. in
Op. at 11 (quoting Pet. App. 15). But no person becomes President
without having been highly prominent for an extended period in
the public or private sector. If the Court allows this case to
proceed, it is difficult to believe that other potential litigants,
encouraged by the spectacle, will not come forward in this of
future Administrations, to use a lawsuit to distract, harass or obtain
personal information about a President by "alleging unwitnessed
one-on-one encounters that are extremely difficult to dispose of by
way of pretrial motion." Pet. App. 27 (Ross, J. dissenting).
Respondent asserts that there is not extensive history of litigation
against a sitting President being used for this purpose. Br. in Op.
at 11. But there was no history of Presidents being sued for
official acts before Nixon v. Fitzgerald. See 457 U.S. at 753
n.33[FN1]. The Court nonetheless granted certiorari in Fitzgerald,
and afforded President Nixon an absolute immunity -- a much
broader protection than is sought here -- because it recognized the
danger that opportunistic litigation presents to the office of the
Presidency. 457 U.S. at 753. The risk of opportunistic litigation is
no less in a case of this kind than it was in Fitzgerald, and this
Court's review is no less warranted here.
2.a. Respondent embraces the panel majority's view that the risk
such litigation poses to the Presidency can be managed by allowing
trial judges to exercise discretion over the scheduling of litigation.
We explained in the petition why this supposed cure is worse than
the disease: it will precipitate repeated confrontations between the
President and federal or state trial courts, as those courts pass
judgment on a President's requests that the litigation schedule be
modified because of the demands of his office. As Judge Ross
asked below (Pet. App. 29):
Is it appropriate for a court to decide, upon the President's motion,
whether the nation's interest in the unfettered performance of a
presidential duty is sufficiently weighty to delay trial proceedings?
Once a conflict arises between the court and the President as to the
gravity of an intrusion on presidential duties, does a court have the
authority to ignore the President's request to delay proceedings?...
[C]an a court dictate a President's activities as they relate to
national and international interests of the United States without
creating a separation of powers conflict?
The brief in opposition seeks to create the impression that trial
judges will be highly deferential to the demands of the Presidency.
It repeatedly quotes Judge Beam's formulation, according to which
a trial judge may "reschedul[e] any proposed action by any party at
any time should she find that the duties of the presidency are even
slightly imperiled." Pet. App. 25, quoted in Br. in Op. 8, 12. But
that is not the standard established by the prevailing opinion
below, which stated that the President could obtain relief from a
trial judge only if he could show that a specific aspect of the
proceedings "interfer[ed] with specific, particularized, clearly
articulated presidential duties." Pet. App. 16.
Moreover, under either standard, once trial judges are vested with
discretion, they inevitably will exercise it in different -- and
sometimes highly intrusive -- ways. While some may be
deferential to the President, others surely will not be. And the
affront to the separation of powers inheres in the very fact that a
trial judge is empowered to review the President's official
responsibilities to determine whether he should instead devote his
attention to a private civil action.
One need look no further than this case to see the pitfalls in
authorizing courts to review such matters. Here, the district court
made a specific case-management determination, based on the
particular facts of this case, that the trial should be stayed until the
President leaves office. Pet. App. 70-71. The panel majority,
notwithstanding its purported reliance on the discretion of trial
judges, promptly reversed the stay as an abuse of discretion,
without even explaining why the district court's evaluation of the
facts was mistaken. Pet. App. 13 n.9.
This clash between the district court and the court of appeals -- and
the disagreement within the court of appeals even as to the
appropriate legal standard -- is symptomatic. It shows that the
separation of powers cannot reliably be protected by requiring the
President to make ad hoc showings about how specific aspects of
the litigation will affect his ability to carry out his official duties. It
also underscores the need for this Court to review this important
issue.
b. In arguing that courts can oversee Presidential involvement in
civil damages litigation, respondent, like the panel majority, relies
heavily on the handful of cases in which Presidents have testified
as third-party witnesses in criminal proceedings. Br. in Op. 12-13.
The lesson of those cases, however, is the opposite of what
respondent suggests: they show how difficult it is for courts to
reconcile the demands of the judicial process with the
responsibilities of the executive branch.
A President who testifies as a witness is involved in a one-time
encounter with the judiciary. By contrast, a defendant faced with
personal liability will be involved in every phase of the litigation.
The opportunities for tension and conflict between the President
and the courts thus increase exponentially. Moreover, a President
who is a third-party witness ordinarily faces little risk to his
reputation or financial well-being. When a President is a defendant
in a damages action, the stakes are incalculably greater. The
burdens and distractions that ensue inevitably will be far more
intrusive than when the President is a witness.
Nonetheless, even in the far less burdensome context of third-
party testimony by Presidents, the experience has been that the
process of accommodation is painstaking [2] and should be
undertaken only in cases of compelling need. [3] Even when the
President is just a witness, the principle of separation of powers is
strained to the limit. The course respondent suggests -- giving a
trial court the power to manage the President's priorities to
accommodate personal damages litigation -- pushes the separation
of powers past the breaking point.
Finally, even in cases where only testimony or evidence has been
sought from a President, this Court repeatedly has drawn a clear
line between criminal proceedings -- where a compelling public
interest is involved -- and civil damages proceedings. See Nixon v.
Fitzgerald, 457 U.S. at 754 & n.37; United States v. Nixon, 418
U.S. 683, 712 n.19 (1974). The fact that Presidents on occasion
appear as witnesses in criminal proceedings, therefore, does not
support the conclusion that a President is required to participate in
a private civil damages action in any capacity -- and certainly not
as a defendant.
3.a. The brief in opposition attempts to create the impression that
the President seeks to be held absolutely immune from liability for
actions he took while he was not President. The President seeks no
such thing, and respondent's elaborate arguments against that
proposition (Br. in Op. i, 9, 15-18, 20- 22) are simply a determined
effort to confuse the issue. Rather, throughout this case, the
President has asserted that the responsibilities of the Presidency
warrant a stay of litigation until he leaves office. He does not seek
to extinguish the respondent's rights to pursue her claims, does not
seek to evade accountability, and remains subject to the risk of
damages.
And while respondent, like the panel majority, engages in
overblown rhetoric to the effect that the President is seeking to
place himself "above the law" and that the relief he seeks is
"unprecedented," even respondent is forced to concede the validity
of the underlying principle for which we contend. She
acknowledges that the President is not like any other litigant, and
that the courts must show "defense" and must accommodate the
President's unique responsibilities. Br. in Op. 12-14.
b. Respondent and the panel majority suggest that Fitzgerald
affirmative rejected the President's position here. Pet. App. 8- 9,
10-11; Br. in Op., at 16, 23. This suggestion is, to say the least,
odd: in Fitzgerald, even the plaintiff, although seeking to hold
then-former President Nixon liable in damages, conceded in his
brief that litigation against a sitting President could be stayed [4] --
reflecting the universal understanding, until this case, that a
President cannot be subjected to personal damages litigation during
his term of office. The issue in Fitzgerald was whether a President
enjoys absolute immunity from liability for all his official acts. The
Court decided that the President, alone among all public officials,
is entitled to this exceptional protection. That conclusion is fully
consistent with our view that a President who is sued for acts
outside the scope of his office is entitled to the much more limited
relief of temporary insulation from litigation. Indeed, as we
showed in the petition, a crucial aspect of the Court's reasoning in
Fitzgerald was that personal damages litigation can divert a
President from his official duties. [5]
Respondent (Br. in Op. 9, 16) makes much of Chief Justice
Burger's statement in Fitzgerald that "[t]he doctrine of absolute
immunity does not extend beyond [official] actions," -- a statement
with which we of course agree. 457 U.S. at 761 n.4. (Burger, C.J.,
concurring); see also id. at 759. Respondent does not mention that
Chief Justice Burger also said that "[t]he need to defend damages
suits would have the serious effect of diverting the attention of a
President from his executive duties," and cautioned that "litigation
processes . . . can be and are used as mechanisms of extortion." Id.
at 763.
4. Respondent asserts (Br. in Op. 19-20) that President Jefferson
"lost" his argument that subjecting Presidents to a Court's
jurisdiction undermines the separation of powers. In fact, our
history -- beginning at least with President Jefferson and extending
through the Burr cases, the Fitzgerald case, and United States v.
Nixon and its progeny -- teaches that subjecting a sitting President
personally to the process of the courts is something that should be
done only in cases of imperative need, and then only to the most
limited extent possible. See Fitzgerald, 457 U.S. at 753-54. [6]
No court has ever, until now, required a sitting President to defend
a civil damages action directed at him personally. In fact, no court
has ever required a President to testify in a civil case as a witness.
What respondent seeks -- allowing a sitting President to be sued for
damages in his personal capacity -- would be an intrusion far
beyond anything that has ever before been allowed, or even
contemplated. To permit such an intrusion, without even so much
as this Court's review, is utterly unwarranted.
For these reasons and the reasons stated in the petition, the petition
for a write of certiorari should be granted.
Respectfully submitted,
Robert S. Bennett
Counsel of Record
Carl S. Aruba
Alan Kriegel
Amy R. Sabrin
Stephen P. Vaughn
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
1440 New York Avenue, N.W.
Washington, D.C. 200005
(202) 371-7000
Of Counsel: David A. Strauss
Geoffrey R. Stone
1111 East 60th Street
Chicago, Illinois 60637
(312) 702-9601
Attorneys for the Petitioner
President William Jefferson Clinton
May 28, 1996
ENDNOTES
[1] The Court in Fitzgerald attributed this to the fact that Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971), which
permitted damages actions against federal officials for violation of
the Constitution, was of relatively recent vintage. But common
law tort actions had long been available against federal officials, as
justice Harlan noted in Bivens. See 403 U.S. at 400 n.3, 409
(Harlan, J. concurring). The more likely explanation for the
absence of suits against the President is that -- as we showed in the
petition -- it was universally understood that the President could
not be sued for damages while in office. See Fitzgerald, 457 U.S.
at 758.
[2] See, e.g., United States v. Poindexter, 732 F.Supp. 142, 148-
50, 155-59 (D.D.C. 1990) (court limited defendant to written
interrogatories and videotaped deposition, and reviewed questions
to be asked in advance); United States v. McDougal, No. LR-CR-
95- 173 (E.D. Ark., Mar. 29, 1996) (permitting presidential
testimony only by way of videotaped deposition conducted at the
White House, supervised by the trial court via videoconferencing
to avoid abuses, after which only directly relevant portions would
be shown at trial).
[3] See, e.g., Poindexter, 732 F.Supp. at 147 (President would be
compelled to provide testimony for criminal trial only if court is
"satisfied that his testimony would be material as tested by a
meticulous standard, as well as being necessary in the sense of
being a more logical and more persuasive source of evidence than
alternatives that might be suggested") (footnote omitted); United
States v. North, 713 F. Supp. 1448, 1449 (D.D.C. 1989)
(compelled testimony of former President in a criminal proceeding
must be justified by a "sufficient showing . . . that the . . .
President's testimony is essential to assure the defendant a fair
trial"), aff'd, 910 F.2d 843 (D.C. Cir. 1990), cert. denied, 500 U.S.
941 (1991).
[4] Brief for Respondent A. Ernest Fitzgerald, Nos. 78-1783 and
80-945 (Sup. Ct. filed Oct. 29, 1981) at 28.
[5] The respondent suggests that the President is entitled to the
relief sought here only if provided for in an act of Congress. Br. in
Op. 11. We disagree. The relief sought here is required by the
singular nature of the President's constitutional duties, and by
principles of separation of powers. Fitzgerald, 457 U.S. at 749. The
President does not rely on, or claim any relief under, the Solders'
and Sailors' Civil Relief Act of 1940 (50 U.S.C. Sections 501-525
(1988 & Supp. Y 1993)), or any other legislation.
[6] In the face of this Court's demonstration in Fitzgerald that the
Framers contemplated that Presidents would not be subject to suits
while in office (457 U.S. at 751 n.31), respondent cites four cases.
Br. in Op. 20. Three involve the entirely different question of
whether a President can be required to be a witness in a criminal
proceeding. See supra, p. 6-7. The fourth, National Treasury
Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1973) (en
banc) ("NTEU"), is inapposite and of questionable vitality, and in
any event supports our position. In NTEU, the President was sued
for injunctive relief in his official capacity, and was not required to
defend the litigation personally. The court of appeals stated that it
had the authority to mandamus President Nixon to perform a
ministerial duty, but refrained from exercising that authority "in
order to show the utmost respect to the office . . . and to avoid, if at
all possible . . . any clash between the judicial and executive
branches." the court proceeded by way of declaratory judgment
instead. 492 F.2d at 616. Contrary to respondent's suggestion,
NTEU demonstrates that courts go to great lengths to avoid
entangling the President in their jurisdiction. Moreover, even the
viability of the opinion expressed in NTEU -- that a President
could be enjoined -- is in doubt, in view of the more recent
discussion of that issue in Franklin v. Massachusetts, 505 U.S. 788
(1992). See id., 505 U.S. at 802-03 (plurality opinion of O'Connor,
J.) (citing Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 498-99
(1867)); id. at 826 (Scalia, J., concurring).
