No. 95-1853
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
WILLIAM JEFFERSON CLINTON, PETITIONER
v.
PAULA CORBIN JONES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN
SUPPORT OF PETITIONER
DREW S. DAYS, III
Solicitor General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor General
DOUGLAS N. LETTER
SCOTT R. McINTOSH
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995 No. 95-1853
WILLIAM JEFFERSON CLINTON, PETITIONER
v.
PAULA CORBIN JONES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN
SUPPORT OF PETITIONER
INTEREST OF THE UNITED STATES
This is a private civil action for damages against the President of
the United States based on alleged pre-Presidential conduct. The
decision below compels the President to participate in discovery
and defend himself at trial. The United States has a fundamental
interest in protecting the Office of the President and the powers
and duties vested in that Office by Article II of the Constitution.
The United States is therefore directly interested in whether, and
under what circumstances, a sitting President may be compelled to
take part in judicial proceedings.]
STATEMENT
1. In May 1994, respondent Paula Corbin Jones filed a complaint
in the United States District Court for the Eastern District of
Arkansas. The complaint named as defendants petitioner William
Jefferson Clinton, the President of the United States and former
Governor of Arkansas, and Danny Ferguson, an Arkansas state
trooper. Respondent alleged that then-Governor Clinton had
sexually harassed her in May 1991, and that she was thereafter
subjected to retaliation and libel relating to the episode.
Respondent asserted claims under 42 U.S.C. 1983 and 1985, and
under the common law of Arkansas. She sought $75,000 in
compensatory damages and $100,000 in punitive damages for each
claim.
In August 1994, the President filed a motion to dismiss the suit
without prejudice or, in the alternative, to stay the suit. The
President contended that he was immune during his term of office
from private civil litigation arising out of pre- Presidential conduct.
The President asserted that respondent should not be allowed to
proceed with her suit while he remained in office, but should be
permitted to reinstate her suit thereafter.[2]
The United States filed a statement of interest pursuant to 28
U.S.C. 517. The United States argued that, except in unusual
circumstances, the President should not be compelled to defend
himself during his term of office against private suits based on pre-
Presidential conduct. The United States further submitted that this
case presents no unusual circumstances that would warrant
allowing the litigation to proceed during the President's term. The
United States recommended that the court stay the proceedings,
rather than dismiss the suit, in order to avoid any possible statute
of limitations problems.
In December 1994, the district court entered an order denying the
President's motion to dismiss but partially granting the President's
alternative motion for a stay. Pet. App. 54-77. The district court
sought guidance from Nixon v. Fitzgerald, 457 U.S. 731 (1982), in
which this Court recognized absolute Presidential immunity for
acts "within the 'outer perimeter' of [the President's] official
responsibility." Id. at 756. Relying on the Court's reasoning in
Fitzgerald, the district court concluded that the President is entitled
to "temporary or limited immunity from trial" during his term of
office for claims based on his unofficial acts. Pet. App. 70. The
district court also based the stay on its equitable power over its
docket and on Rule 40 of the Federal Rules of Civil Procedure. Id.
at 71. The court held, however, that discovery could proceed "as to
all persons including the President himself." Ibid.
2. The President and respondent filed cross-appeals from the
district court's order. On January 9, 1996, a divided panel of the
Eighth Circuit affirmed the denial of the President's motion to
dismiss, reversed the grant of a partial stay, and remanded with
instructions to allow the suit to proceed. Pet. App. 1-31.
The majority framed the issue as whether the President "is entitled
to immunity from civil liability for his unofficial acts." Pet. App. 3.
The court held that the President "is entitled to immunity, if at all,
only because the Constitution ordains it." Id. at 16. The majority
then determined that the Constitution does not grant the President
immunity from private suits based on the President's unofficial
acts. Ibid. It reasoned that the President's immunity under
Fitzgerald for acts within the "outer perimeter" of his official duties
represents the full extent of Presidential immunity under the
Constitution. Id. at 8-9. The court acknowledged that the district
court had also predicated its stay on its "broad discretion in matters
concerning its own docket," but held that it was an abuse of
discretion for the district court to grant the stay in the absence of a
constitutionally mandated immunity. Id. at 13 n.9. Judge Ross
dissented, taking the position that private actions for damages
against a sitting President based on the President's unofficial acts
should be stayed until the completion of the President's term
"unless exigent circumstances can be shown."
Id. at 25.
ARGUMENT
The decision below prohibits trial courts from staying private civil
suits against the President of the United States during the
President's term of office. In the view of the United States, the
decision is fundamentally mistaken. When a private litigant
invokes judicial processes to pursue claims against a sitting
President, the court ordinarily should exercise its power to
postpone the litigation until the President leaves office. By
compelling Presidents to defend themselves against personal
liability during their term of office, the Eighth Circuit's holding
creates serious risks for the institution of the Presidency. Given the
practical importance of this issue to the responsibilities of the
Presidency, and given the shortcomings in the Eighth Circuit's
reasoning, review by this Court is warranted.
1. a. At issue here is when, not whether, the President may be
required to defend himself against claims based on his unofficial
acts. Resolution of that issue implicates the basic and well-
established judicial power to stay civil proceedings. Over a half-
century ago, in Landis v. North American Co., 299 U.S. 248, 254
(1936), this Court held that "the power to stay proceedings is
incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants." The Court
recognized in Landis that "[o]ccasions may arise when it would be
a 'scandal to the administration of justice' * * * if power to
coordinate the business of the court efficiently and sensibly [by
staying proceedings] was lacking altogether." Id. at 255. In the
view of the United States, the established authority of trial courts
to stay proceedings should be exercised, except in extraordinary
circumstances, to defer private suits against a sitting President
during his term of office.
Whenever a litigant seeks to invoke the processes of the courts
against the President, "the President's constitutional responsibilities
and status [are] factors counseling judicial deference and restraint.')
Fitzqerald, 457 U.S. at 753. To be sure, the separation-of-powers
doctrine "does not bar every exercise of jurisdiction over the
President of the United States. But * * * a court, before exercising
jurisdiction, must balance the constitutional weight of the interest
to be served against the dangers of intrusion on the authority and
functions of the Executive Branch." Id. at 753-754. When the
President is forced to defend himself in his personal capacity
during his term of office, "the dangers of intrusion on the authority
and functions of the Executive Branch" are both real and obvious.
The substantial burdens borne by individual defendants in civil
litigation, especially litigation seeking to impose personal financial
liability, require little elaboration. When those burdens are
imposed on the President of the United States, they can be
expected to impinge on the President's discharge of his
constitutional duties, by forcing him to divert his energy and
attention to the task of protecting himself against personal liability.
As a result, they implicate interests that are both public and
constitutional in nature.
As this Court noted in Fitzgerald, "[t]he President occupies a
unique position in the constitutional scheme," one that
"distinguishes him from other executive officials." 457 U.S. at 749,
750. The President is the sole repository of the "executive Power"
created by Article II of the Constitution. Id. at 749-750. Under
Article II, the President is "entrusted with supervisory and policy
responsibilities of utmost discretion and sensitivity," including "the
enforcement of federal law * * *; the conduct of foreign affairs * *
*; and the management of the Executive Branch." Id. at 750.
Both constitutionally and practically speaking, the demands of the
President's office are unceasing. See Amar ~ Katyal, Executive
Privileges and Immunities: The Nixon and Clinton Cases, 108
Harv. L. Rev. 701, 713 (1995). The President must attend to his
constitutional duties continuously throughout his tenure, in contrast
to the Congress, which is required to assemble only "once in every
Year," Art. I, 4, and which may adjourn on a regular basis, Art. I,
5. As a practical matter, the issues of domestic and foreign policy
that call for the President's attention fully occupy, if they do not
indeed outstrip, the time available for the President to respond. The
adoption of the Twenty-Fifth Amendment, with its elaborate
machinery for carrying out the President's functions when he "is
unable to discharge the powers and duties of his office," testifies to
the unique nature of the Presidency and the incessant demands on
its occupants.
Accordingly, a sitting President can defend himself against an
action for damages, and assume all of the burdens that such an
undertaking entails, only by diverting his time and attention from
the demands of his office. That result would disserve the
substantial public interest in the President's unhindered execution
of his duties. It would also impair the integrity of the role assigned
to the President by Article II of the Constitution.
On several occasions, sitting Presidents have given testimony as
witnesses in federal criminal cases by means of depositions and
interrogatories, while declining to attend, or being excused from
attending, court to testify in person. See generally Rotunda,
Presidents and Ex-Presidents As Witnesses: A Brief Historical
Footnote, 1975 U. Ill. L. Forum 1; United States v. McDougal, No.
LR-CR-95-173 (E.D. Ark. Mar. 20, 1996) (order providing for
President's videotaped deposition testimony in Whitewater
prosecution). We know of no instance, however, in which a sitting
President has been compelled to furnish evidence in connection
with a civil proceeding. In any event, the burdens of participating
in a civil suit as a defendant are far different, both in degree and in
kind, from the burdens imposed on a witness, and the risk of
wrongfully motivated efforts to entangle the President in those
burdens is far greater. As a result, the historical examples of sitting
Presidents' giving evidence as witnesses in criminal cases do not
suggest that the President may appropriately be forced to defend
himself against personal liability during his term of office.[3]
b. This Court's decision in Fitzgerald casts light on the
constitutional implications of subjecting the President to the
burdens of civil litigation. As noted above, the Court held in
Fitzgerald that the President is entitled to absolute immunity from
claims for damages "for acts within the 'outer perimeter' of his
official responsibility." 457 U.S. at 756. The Court characterized
that immunity from liability as "a functionally mandated incident
of the President's unique office, rooted in the constitutional
tradition of the separation of powers and supported by our history."
Id. at 749.[4]
In according the President absolute immunity, the Court placed
primary reliance on the prospect that the President's discharge of
his constitutional powers and duties would-be impaired if he were
subject to suits for damages based on his official conduct. 457 U.S.
at 751-754. To expose the President to suits for damages based on
his official actions, the Court reasoned, could deprive him of ''the
maximum ability to deal fearlessly and impartially with the duties
of his office." Id. at 752 (internal quotation marks omitted). The
Court observed that, "[b]ecause 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." Id. at 751. In his concurring opinion, Chief Justice
Burger also noted the possibility that private suits for damages
against a President could be used for purposes of harassment and
extortion. Id. at 762, 763 (Burger, C.J., concurring).
When the President is sued for actions wholly unrelated to his
official responsibilities, Fitzgerald's concern for ensuring
"fearless[] and impartial[]" Presidential decisionmaking is not
directly implicated. The more general concerns underlying this
Court's holding, however, apply with equal force. Fitzgerald
recognizes that "[t]he President occupies a unique position in the
constitutional scheme," 457 U.S. at 749; that the President should
not be diverted from attending to the national welfare by "concern
with private lawsuits," i. at 751; and that the public interest in the
President's unimpaired attention to his official responsibilities must
take precedence over a private litigant's desire to obtain redress for
legal wrongs, i. at 754 n.37. As explained above, the President
would be faced with a "diversion of his energies by concern with
private lawsuits," id. at 751, if he were compelled to defend
himself against a private damage action during his term in office.
That diversion would "raise unique risks to the effective
functioning of government." Ibid. Fitzgerald indicates that the
judicial system should not lend itself to such risks.
c. When a sitting President is sued for conduct unrelated to his
official actions, the demands of the Presidency do not require
absolute immunity from liability. Rather, those demands may be
accommodated by the more limited alternative of postponing the
litigation until the President leaves office. Deferring litigation until
the expiration of the President's term is sufficient to forestall the
"intrusion on the authority and functions of the Executive Branch,"
Fitzgerald, 457 U.S. at 754, that would result if the President were
required to divert his attention to the task of defending himself
against personal liability. At the same time, deferring the suit
preserves the plaintiff's right to seek relief for a meritorious claim.
It affects only when, not whether, the President must answer the
allegations; it merely delays, rather than defeats, the vindication of
the plaintiff's private legal interests. It is thus far less burdensome
for plaintiffs than the immunity recognized in Fitzgerald.[5]
The rule we suggest is not an absolute one. In the exceptional case
where a plaintiff will suffer irreparable injury without immediate
relief, and where prompt adjudication will not significantly impair
the President's ability to attend to the duties of his office, a stay
need not issue. Absent such a showing, however, the public and
constitutional interests in the President's undivided attention to his
office demand a stay.[6]
d. The circumstances of this case do not support a departure from
the general rule outlined above. To the contrary, this case well
illustrates the potential burdens that private litigation would
impose on the President's discharge of his official duties.
The President is the principal defendant in this case, and the suit
seeks to subject him to hundreds of thousands of dollars in
personal liability. Respondent's claims focus overwhelmingly on
his alleged actions, and her complaint acknowledges that the facts
surrounding those claims are hotly contested. The President's
testimony presumably would be central to the resolution of the
underlying factual controversy. The case therefore threatens to
place highly burdensome demands on his time and energy. If the
President were required to defend himself against respondent's
claims during his term of office, he would necessarily be forced to
divert his attention from the demands of the Presidency.
In contrast, immediate resolution of respondent's claims is
unnecessary to protect her interests. The complaint does not
disclose any need for immediate relief. Respondent seeks damages
for past actions, not relief against ongoing or future harms.
Delaying an award of damages until after the President's term of
office (if any award were determined to be due) would not
appreciably affect the value of that relief. Moreover, as the district
court pointed out, respondent waited three years from the time of
the President's alleged actions before filing suit. There accordingly
is no reason to believe that time is now of the essence. Nor is there
any reason to believe that a stay will, in contrast, jeopardize
respondent's ability to marshal evidence on her behalf.[7] In sum,
the specific circumstances of this case reinforce the general
rationale for postponing civil suits against sitting Presidents.
2. The Eighth Circuit rejected this analysis, holding instead that the
district court had committed reversible error in granting the
President even a partial stay of proceedings during his term of
office. The Eighth Circuit's reasoning is seriously flawed.
a. The court of appeals concluded that "the Constitution does not
confer upon an incumbent President any immunity from civil
actions that arise from his unofficial acts." Pet. App. 16. That
conclusion rests on a reading of constitutional history and
precedent that is, at best, highly debatable with respect to the
conduct of litigation against the President during his term of office.
In particular, the Eighth Circuit failed to give sufficient weight to
the constitutional concerns identified by this Court in Fitzgerald.
See pages 9-11, supra; see also Pet. App. 2531 (Ross, J.,
dissenting).
In any event' even if the Eighth Circuit were correct that the
Constitution ex proprio vigore does not render the President
"immune" from civil actions during his term of office, that
conclusion would not resolve the case. The question remains
whether the constitutional and practical demands of the Presidency
should lead a court to postpone such litigation until the President
leaves office. The court of appeals acknowledged that a trial court
has "broad discretion in matters concerning its own docket," but
nonetheless held that the district court had committed reversible
error by exercising that discretion in favor of a partial stay. Pet.
App. 13 n.9. The court reasoned that a sitting President is entitled
to immunity from civil suits, "if at all, only because the
Constitution ordains it." Id. at 16. Because it believed that the
President is not "constitutionally entitled" to "temporary
immunity," the court of appeals concluded that it was an abuse of
discretion for the district court to grant a stay on equitable grounds.
Id. at 13 n.9.
That line of reasoning is fundamentally misconceived. To begin
with, official immunity is not confined, as the Eighth Circuit
thought, to cases in which "the Constitution ordains it." See, e.g,
Butz v. Economou, 438 U.S. 478, 497 (1978) ("the doctrine of
official immunity from 1983 liability * * * [is] not constitutionally
grounded") (emphasis added); Pierson v. Ray, 386 U.S. 547
(1967); Fitzgerald, 457 U.S. at 747 ("Our decisions concerning the
immunity of government officials from civil damages liability have
been guided by the Constitution, federal statutes, and history, '' and
"[t]his Court necessarily also has weighed concerns of public
policy, especially as illuminated by our history and the structure of
our government."). A fortiori, no constitutional mandate is required
for the more limited kind of "immunity" at issue in this case, which
defers rather than denies the plaintiff's opportunity to pursue her
claims in court. A court enjoys inherent authority to control the
progress of cases on its docket, and it properly may exercise that
authority to accommodate public and private interests that would
be unfairly prejudiced by immediate litigation, regardless of
whether it is constitutionally required to do so.
b. The court of appeals concluded that sitting Presidents can be
shielded adequately from the burdens of civil litigation, without a
stay, through "judicial case management." Pet. App. 13. That
conclusion is, in our view, unduly optimistic. As a defendant, the
President has a direct financial stake in the litigation and an
obligation to marshal his defenses. If the litigation is allowed to
proceed during his term of office, the President will inevitably be
required to devote significant energy, expense, and attention to it,
even if the court regulates the timing and extent of discovery and
Presidential testimony. The Eighth Circuit's own conception of the
future district court proceedings, in which the President must resort
to repeated "motions for rescheduling, additional time, or
continuances," id. at 16, belies the notion that "case management"
can meaningfully protect the President from the need to attend to
outcome of the litigation.
c. The Eighth Circuit's decision is also problematic in its analysis
of the other interests involved. The majority and concurring
opinions suggest that delaying litigation until a sitting President
leaves office would infringe on a constitutional right of the
plaintiff to have access to the courts. Pet. App. 10, 17, 20-21. The
causes of action asserted here, however, are based on statutes (42
U.S.C. 1983 and 1985) or state common law, and therefore may be
subjected to limitations and procedures designed to protect
countervailing public interests. Moreover, a stay affects only the
timing of the litigation, not whether the plaintiff receives her day in
court. As a result, the plaintiff's asserted constitutional interest is
preserved. In this regard, we note that while the Bill of Rights
guarantees the right to a speedy trial in criminal cases (U.S. Const.,
Amend. VI), it lacks a similar guarantee for civil litigation.[8]
d. The court of appeals' decision is sharply at odds with the
surrounding legal landscape. For example, the available evidence
indicates that the Framers did not contemplate the possibility that
criminal prosecutions could be brought against a sitting
President.[9] The court of appeals' decision thus gives greater
priority to private civil actions than criminal law enforcement
proceedings would receive`. Yet as this Court noted in Fitzgerald,
"there is a lesser public interest in actions for civil damages than *
* * in criminal prosecutions." 457 U.S. at 754 n.37.
In other contexts as well, it has been recognized that the public
interest may require a stay of civil litigation. For example, a
postponement or Stay may be appropriate during the pendency of
administrative proceedings (see, e.g., Oscar Mayer & Co. v. Evans,
441 U.S. 750, 765 n.13 (1979); Ricci v. Chicago Mercantile
Exchange, 409 U.S. 289, 306-307 (1973)), criminal proceedings
(see, e.g., 21 U.S.C. 881(i); Koester v. American Republic Invs.,
11 F.3d 818, 823 (8th Cir. 1993); United States v. Mellon Bank,
N.A., 545 F.2d 869 (3rd Cir. 1976); 2 Beale & Bryson, Grand Jury
Law and Practice 8:07 (1986)), arbitration proceedings (Moses H.
Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 20 n.23
(1983)), bankruptcy proceedings (11 U.S.C. 362; Hill v. Harding,
107 U.S. 631, 634 (1882); cf. Coit Independence Joint Venture v.
FSLIC, 489 U.SL 561, 585 (1989) (FSLIC receivership)), or state
court proceedings (Heck v. Humphrey, 114 S. Ct. 2364, 2373 n.8
(1994); Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83
(1975); England v. Louisiana State Bd. of Medical Examiners, 375
U.S. 411 (1964)). Similarly, the Soldiers' and Sailors' Civil Relief
Act, 50 U.S.C. App. 501 et seq., provides for federal and state
courts to grant stays in suits involving persons in military service
in specified circumstances, 50 U.S.C. App. 521. See, e.c., Semler
v. Oertwig, 12 N.W.2d 265, 270 (Iowa 1943); Coburn v. Coburn,
412 So.2d 947, 949 (Flat Dist. Ct. App. 1982).[10] The
postponement of litigation under any of these doctrines or statutory
schemes may be lengthy, sometimes as long or longer than a
President's term in office. Congress and the courts have thought
this result justified, however, because of the weight of the
countervailing public policies supporting a stay.
The constitutional demands of the Office of President require the
full measure of the President's attention and energy so long as he
serves. We submit that the need to avoid substantial distractions
from the President's constitutional duties is compelling, and is
clearly of sufficient magnitude to require a stay of civil litigation
against the President, absent unusual circumstances not present
here. Due regard for the institution of the Presidency under our
constitutional structure calls for the Court to resolve this issue
now.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted
MAY 1996
DREW S. DAYS, III
Solicitor General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor General
DOUGLAS N. LETTER
SCOTT R. McINTOSH
Attorneys
ENDNOTES
1 The United States has participated in other cases that have
presented related issues of Presidential participation in judicial
proceedings. The United States participated as amicus curiae in
Nixon v. Fitzgerald, 457 U.S. 731 (1982), which involved the
President's immunity from civil actions for damages based on the
President's conduct in office. Similarly, in In Re Proceedings of the
Grand Jury Impaneled December 5, 1972, Civil 73-965 (D. Md.),
which involved the amenability of a sitting Vice President to a
criminal indictment and trial, the United States also addressed the
amenability of a sitting President to prosecution. In addition, the
United States participated as amicus curiae in United States v.
Poindexter,' 732 F. Supp. 142 (D.D.C. 1990), regarding the
amenability of former President Reagan to a criminal subpoena
relating to the Iran-Contra affair, and in United States v.
McDougal, No. LR-CR-95-173 (E.D. Ark.), regarding the
subpoena issued to President Clinton. The United States has
participated as well in federal and state courts in cases involving
the immunity of foreign heads of state. See, e.g., LaFontant v.
Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994); Anonymous v.
Anonymous, 581 N.Y.S.2d 776 (N.Y. App. Div. 1992).
2 A separate immunity issue exists with respect to one of
respondent Jones's claims, a libel claim that concerns alleged
statements made on the President's behalf after he took office. See
Pet. App. 9 n.7. Neither the district court nor the court of appeals
has addressed whether the statements at issue come within the
scope of the President's immunity under Nixon v. Fitzgerald, 457
U.S. 731 (1982).
3 The production of evidence at a criminal trial has constitutional
dimensions, since the Sixth Amendment guarantees a criminal
defendant the right "to be confronted with the witnesses against
him" and ~"to have compulsory process for obtaining witnesses in
his favor." See United States v. Nixon, 418 U.S. 683, 711 (1974).
A plaintiff in a civil action can assert no comparable constitutional
entitlement. Cf. Fitzgerald, 457 U.S. at 754 n.37 ("there is a lesser
public interest in actions for civil damages than, for example, in
criminal prosecutions").
4 The Court in Fitzgerald discussed in some detail historical
precedents regarding the susceptibility of sitting Presidents to
judicial process. See 457 U.S. at 751-752 n.31. The Court noted,
inter alia, that such early Americans as John Adams, Oliver
Elleworth, Joseph Story, and Thomas Jefferson believed the
President not to be subject to judicial process. Id. at 751 n.31. The
Court concluded that "[t]he best historical evidence clearly
supports'' a rule of absolute immunity for a President's official
actions. Id. at 752 n.31.
5 Somewhat different concerns might be raised by private actions
for equitable relief, such as suits to enjoin ongoing unlawful
conduct unrelated to the President's official duties. But when a
plaintiff seeks only damages for alleged past misconduct, delay is
unlikely to vitiate the relief. And there is no reason to expect, at
least as a general matter, that postponing litigation will defeat a
plaintiff's eventual ability to marshal evidence in support of his or
her claims. If the circumstances of a particular case suggest an
unusual risk that specific evidence will be lost for example, if the
case will require the testimony of an extremely ill witness --
arrangements can be made to preserve that evidence without
allowing a more general commencement or resumption of the
litigation. Cf. Fed. R. Civ. P. 27 (perpetuation of testimony).
Postponing adjudication of private damage actions will therefore
rarely defeat a plaintiff's ability ultimately to obtain meaningful
relief.
6 Where the public and constitutional interest in the President's
unimpaired attention to his duties conflicts with the purely private
interest of a plaintiff in obtaining immediate relief, the private
interest must yield. Cf. Fitza~erald, 457 U.S. at 754 n.37 (President
has absolute immunity for claims relating to official actions even
though "absolute immunity may impose a regrettable cost on
individuals whose rights have been violated"). As a result, even
where a plaintiff can show that his or her interests would be
prejudiced, a stay should issue unless the court further determines
that allowing the litigation to proceed would not impair the
President's attention to the demands of his office.
7 Respondent characterizes this case as "a very simple dispute,"
involving "only a handful of potentially important witnesses." Br.
in Opp. 10. Given the nature of respondent's claims, the principal
witnesses presumably are President Clinton and respondent herself.
There is no reason to expect that either party will be unable to give
testimony after the President leaves office.
8 The concurring opinion is similarly mistaken in suggesting (Pet.
App. 17) that a stay of the litigation would infringe on the
plaintiff's Seventh Amendment right to trial by jury. The Seventh
Amendment concerns who will decide contested issues of fact, not
when such issues will be decided. See Capital Traction Co. v. Hof,
174 U.S. 1, 23 (1899) (Seventh Amendment "does not prescribe at
what stage of an action a trial by jury must * * * be had").
9 See, e.g., 2 Farrand, Records of the Federal Convention of 1787
64-69,' 500 (New Haven 1911); The Federalist No. 69, at 416
(Hamilton) (C. Rossiter ed. 1961) (the President "would be liable
to be impeached, tried, and, upon conviction * * * removed from
office; and would afterwards be liable to prosecution and
punishment in the ordinary course of law"). In In Re Proceedings
of the Grand Jury Impaneled December 5. 1972, Civil 73-965 (D.
Md.), the United States took the position that while a sitting Vice
President is subject to criminal prosecution, a sitting President is
not.
10 Although we understand that the President does not claim relief
under this statute, see Reply Br. 8 n.5, it demonstrates -like the
other examples cited in text -- that reasons of public policy may in
certain circumstances require postponement of civil litigation.
