Paula Jones' sexual harassment suit against Bill Clinton will not go to trial until he is out of office. Both sides, however, can proceed with pre-trial fact finding, according to the decision issued by a federal judge in Arkansas.

IN THE UNITED STATES DISTRICT COURT
WESTERN DIVISION

PAULA CORBIN JONES,  *
Plaintiff,   *

vs .    * No. LR-C-94-290

WILLIAM JEFFERSON CLINTON *
and DANNY FERGUSON,  *

Defendants.   *

MEMORANDUM OPINION AND ORDER

 The Plaintiff, Paula Corbin Jones, filed a damage suit against
the Defendants William Jefferson Clinton and Danny Ferguson to
recover for acts which were alleged to have taken place
primarily while Defendant Clinton was Governor of Arkansas and
Defendant Ferguson was a Trooper with the Arkansas State Police
assigned to the Governor. Subsequently, in the General Election
of November, 1992, Mr. Clinton was elected President of the
United States and assumed that office on January 20, 1993.

 The complaint was filed on May 6, 1994, and was predicated on
an alleged incident which was said to have occurred on May 8,
1991. The action alleged sexual harassment and conspiracy
pursuant to 42 U.S.C. 1983 and 1985, which are provisions
included in civil rights legislation of the reconstruction era.
It also alleged state law claims of defamation and outrage.

Defendant Ferguson responded to these allegations by, in
essence, denying any which might involve questionable activities
on his part. Defendant Clinton responded with a motion to
bifurcate the briefing schedule so as to permit the question of
Presidential immunity to be argued on a motion to dismiss before
any other questions were presented. On July 21, 1994, the Court
entered a Memorandum and Order allowing President Clinton to
file a motion to dismiss on the basis of Presidential immunity
and deferring and preserving the filing of any other motions or
pleadings until the issue of Presidential immunity had been
resolved. Jones v. Clinton, 858 F. Supp. 902 (E.D. Ark. 1994).
The Court noted that this order was purely procedural in nature
and addressed only the question of whether Presidential immunity
would be considered as a threshold issue. Id. at 907 n.6.

The basic issue, therefore, which this Memorandum Opinion and
Order addresses is whether a civil action may be asserted
against the President of the United States while he is in office
when the fact situation alleged in the complaint arose before
his election and assumption of office.

 I.

Absolute Immunity of the President from Civil Suit

 The President has asserted that he may not be sued in a civil
action while sitting as President, even when the facts asserted
by the Plaintiff occurred, if at all, before he was elected or
assumed the office. This, of course, is a claim of absolute
immunity. The President would have the Court dismiss the
complaint while preserving through some equitable tolling of the
statute of limitations the right of Ms. Jones to sue him civilly
as soon as he left office. The Justice Department in its
Statement of Interest of the United States also argued for
immunity, but urged the Court in the alternative simply to stay
the proceedings until the President had left office. Ms. Jones
argued against immunity, but also argued alternatively for
dismissal with an automatic reinstatement on the Court's docket
on the last day of his Presidency and against a stay. All briefs
discussed at some length the intent of the framers of the
Constitution and interpretations of various scholars and judges
relating to this subject, and all were thorough and well
researched.

A. The English Legacy

The Court believes that the place to begin this discussion,
before coming to the vital question of constitutional
interpretation, is in English law and the development of the
rights and liberties of the English people. The rights and
liberties of England became our inheritance. The Constitution of
the United States and the constitutions of the states contain
provisions that come directly from that source.

Almost all of the states adopted "reception statutes" receiving
into state law the English common law and acts of Parliament as
they existed as of a certain date--which was usually 1507, 1620,
or 1776--except to the extent that they were contrary to our
federal or state constitutions or statutes or were contrary to
our form of government. Arkansas adopted such a statute shortly
after becoming a state. Ark. Code Ann. § 1-2-119 (Michie 1987);
Ark. Stat. Ann. § 1-101 (1976 Repl.); discussed in Moore v.
Sharpe, 121 S.W. 341 (1909). The statute adopted the English
common law, subject to the stated limitations, as it existed
prior to the fourth year of James I. Various English statutes or
common law rules passed into Arkansas law as a result. E.g.
Biscoe v. Thweatt, 74 Ark. 545, 86 S.W. 432 (1905) (Statute of
Charitable Uses); Horsley v. Hilburn, 45 Ark. 458 (1884) (Rule
in Shelley's Case implicitly recognized but not applied to fee
tail pursuant to superseding Arkansas statute); Moody v. Walker,
3 Ark. 140 (1840) (Rule Against Perpetuities). Also received
were those portions of the Magna Carta relating to due process
of law, equal protection, trial by jury, and rights unrelated to
the feudal system.

The Magna Carta was largely a restatement of feudal law
pertaining to land tenures and their incidents, and thus most of
it has no application here. However, in addition to enshrining
in English law some of our basic rights and liberties, it
constituted a series of limitations placed upon the King and his
authority. There would follow in English history a long and
bloody struggle to define the rights of the monarchy as opposed
to Parliament and the citizenry and also to the common law
itself.

The tension between the King and Parliament, on the one hand,
and the King and the common law, on the other, reached its
heights with the ascension to the throne of the Stuart monarchy
in the person of King James the First (who was James the Sixth
of Scotland). Friction soon arose between the King and the House
of Commons. At the root of the disagreement, once again, was the
Magna Carta. See generally William Swindler, Magna Carta: Legend
and Legacy 169-176 (1965).

An important participant in all of this was Sir Edward Coke,
whose writings had an enormous influence on English and American
law, and who had served as Solicitor General and later Attorney
General under Queen Elizabeth I and also as Chief Justice of the
Court of Common Pleas. He subsequently would become Chief
Justice of the King's Bench under King James I. See 3 Roscoe
Pound, Jurisprudence 428 (1959). Under Elizabeth, as her
attorney, Coke had been a staunch defender of the Crown, but as
a judge, he would quote Bracton to King James: "The King ought
to be under no man, but under God and the law." Swindler, supra,
at 172. He also stated in Dr. Bonham's Case, 8 Co. 113b, 118a,
77 Eng. Rep. 646, 652 (1610): "And it appears in our bodies,
that in many cases the common law will controul acts of
Parliament, and sometimes adjudge them to be utterly void" if
they are "against common right and reason." William B. Lockhart
et al., The American Constitution 251 (5th ed. 1981). That was
unlikely to be a true statement of the law in the early 17th
Century, but to the extent that it was precedent, it may be said
to be an early expression of judicial review.

None of this and other frictions set well with the King, and
Coke was dismissed from the bench, turning his efforts to
Parliament. The continuing friction between Parliament and
James' successor, King Charles I, ultimately led to the adoption
of the Petition of Right, which in essence ratified and extended
the Magna Carta, and in effect further limited the prerogatives
of the Crown. A defining moment came when the House of Commons
rejected a proposal of the House of Lords that would add a
clause recognizing the sovereignty of the King. Coke gave this
fulmination:

 I know that prerogative is part of the law, but sovereign power
is no Parliamentary word; in my opinion, it weakens Magna Carta
and all our statutes; for they are absolute without any saving
of sovereign power. And shall we now add to it, we shall weaken
the foundation of law, and then the building must needs fall;
take we heed what we yield unto--Magna Carta is such a Fellow,
he will have no Sovereign.

Swindler, supra, at 185.

 The Petition of Right was one of the foundation stones of the
English Constitution. It enlarged upon the Magna Carta as a
constitutional limitation upon the power of the monarchy. It
made it apparent that the King's prerogative was limited. Sub
Deo et Lege FN 1 was the law of the land.

B. The American Experience

 In the formulation of Article II of the Constitution, there
were varying viewpoints as to the office of the President. FN 2
Some, such as Roger Sherman of Connecticut, believed that the
President should be "nothing more than an instrument for
carrying the will of the Legislature into effect," while others,
such as Gouverneur Morris of Pennsylvania, thought the President
should be "the guardian of the people, even of the lower
classes, against Legislative tyranny." Arthur Schlesinger, Jr.,
The Constitution: Article II, in An American Primer 121-22
(Daniel J. Boorstin ed., 1968). What resulted was the compromise
that we have today, amended only slightly from the original. It
sets out the powers and duties of the Executive Branch (i.e.,
the President and the administrators he appoints), but it does
not address the immunity question.

A large part of the problem, aside from the silence of the
Constitution, is that for all practical purposes, the Executive
Branch, unlike the Congress and the Supreme Court, consists of
only one person. His administrative appointees serve at his
pleasure. Thus, a large part of the President's assertion may be
summarized in the proposition that, without immunity, to cripple
the Presidency in one way or another in civil litigation is to
deliver a blow to and weaken the effectiveness of the entire
Executive Branch of government which in effect is only one
person, the President.

The importance of unimpeded, independent branches of government
is discussed by Alexander Hamilton FN 3 in The Federalist No.
51:

Were the executive, magistrate, or the judges not independent of
the legislature in this particular, their independence in every
other would be merely nominal. . . [We must give] to those who
administer every department the necessary constitutional means
and personal motives to resist encroachments of the others. . .
constitutional rights of the place. It may be a reflection on
human nature that such devices should be necessary to control
the abuses of government. But what is government itself but the
greatest of all reflections on human nature? If men were angels,
no government would be necessary. If angels were to govern men,
neither external nor internal controls on government would be
necessary. In framing a government which is to be administered
by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the
next place oblige it to control itself.

I The People Shall Judge 312, 313 (University of Chicago Social
Science Staff 1949). He is speaking of independence from other
branches, but also of the responsibility that goes along with
it.

The President and his lawyers, in arguing the immunity issue,
seem to place substantial reliance on the intention of the
framers of the Constitution. Much of what they argue relates to
the impeachment process. For example, they seize in their brief
upon this commentary by Hamilton from The Federalist No. 69:
"The President of the United States would be liable to be
impeached, tried, and, upon conviction of treason, bribery, or
other high crimes or misdemeanors, removed from office; and
would afterwards be liable to prosecution and punishment in the
ordinary course of the law." Of course, Hamilton was talking
about impeachment under Article II, Section 4, under which the
President may be "removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors." That has nothing to do with immunity from civil
suit. Article II, and Hamilton, were addressing criminal conduct
on the part of the President.

This is not to say, however, that the question of Presidential
immunity from suit was not discussed at the Constitutional
Convention or during the years immediately following. Justice
Lewis Powell addresses this in speaking for the majority of the
Court in Nixon v. Fitzgerald, 457 U.S. 731 (1982):

[T]here is historical evidence from which it may be inferred
that the Framers assumed the President's immunity from damages
liability. At the Constitutional Convention several delegates
expressed concern that subjecting the President even to
impeachment would impair his capacity to perform his duties of
office. See 2 M. Farrand, Records of the Federal Convention of
1787, p. 64 (1911) (remarks of Gouverneur Morris); id., at 66
(remarks of Charles Pinckney). The delegates of course did agree
to an Impeachment Clause. But nothing in their debates suggests
an expectation that the President would be subjected to the
distraction of suits by disappointed private citizens. And
Senator Maclay has recorded the views of Senator Ellsworth and
Vice President John Adams--both delegates to the Convention-
-that `the President, personally, was not the subject to any
process whatever . . . . For [that] would . . . put it in the
power of a common justice to exercise any authority over him and
stop the whole machine of Government.' Journal of William Maclay
167 (E. Maclay ed. 1890).

457 U.S. at 751-52 n.31.

Justice Powell also quoted from Justice Joseph Story's
Commentaries on the Constitution of the United States to this
effect:

`There are . . . incidental powers, belonging to the executive
department, which are necessarily implied from the nature of the
functions, which are confided to it. Among these, must
necessarily be included the power to perform them . . . The
president cannot, therefore, be liable to arrest, imprisonment,
or detention, while he is in the discharge of the duties of his
office; and for this purpose his person must be deemed, in civil
cases at least, to possess an official inviolability.' 3 J.
Story, Commentaries on the Constitution of the United States
Sec. 1563, pp. 418-419 (1st ed. 1833).

457 U.S. at 750.

But just as the English law moved from the divine right of kings
assertion to the assertion of Lord Coke and Parliament that the
King was under God and the law, the situation in American law
prior to Fitzgerald had proceeded essentially in the same
direction with regard to the office of President. For example,
it has been pointed out that when Hamilton made the statement
quoted previously from The Federalist No. 69, "he was referring
to his own plan" rather than reciting faithfully what had been
proposed. Raoul Berger, Selected Writings on the Constitution
46-47 n.94 (1987). Moreover, the discussion at the
Constitutional Convention revolved around the impeachment
process, the basis for which was the commission of "high crimes
and misdemeanors." Although Justice Story, writing several
decades later, discusses civil cases, as previously quoted, he
is writing from the perspective of someone who was a boy at the
time of the Convention--although admittedly he was rather close
in time to those proceedings. He was successful in that what he
wrote was embodied in Fitzgerald. There was much opposition even
to the impeachment provision; some thought that the Supreme
Court should conduct the trial rather than the Senate. James
Madison was an advocate of that view, although Gouverneur Morris
thought that "no other tribunal than the Senate could be
trusted" and believed that the Supreme Court "were too few in
number and might be warped or corrupted." 2 Debates in the
Federal Convention of 1787 Which Framed the Constitution of the
United States of America 535 (reported by James Madison)
(Gaillard Hunt & James Brown Scott, eds., 1987).

The disagreement over Presidential immunity at the
Constitutional Convention carried over into the years that
followed. In United States v. Burr, 25 F. Cas. 30 (C.C.D. Va.
1807) (No. 14,692d), Chief Justice John Marshall ruled that a
subpoena duces tecum could be issued to President Thomas
Jefferson. Jefferson protested strongly, arguing that the three
branches of government had to be independent of each other,
including independence by the executive from the judiciary.
(Discussed in Nixon v. Fitzgerald, 457 U. S. at 751 n. 31.) In
Livingston v. Jefferson, 15 F.Cas. 660 (C.C.D. Va. 1811) (No.
8,411), damages were sought for alleged trespass committed by a
federal officer at the direction of Jefferson, but a federal
court dismissed it for having been brought improperly in
Virginia. The immunity issue was not reached. Of course, even
before these cases, the argument of total independence of the
Executive Branch from judicial action had been settled in large
part by Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). This
case is remembered for the recognition and use of judicial
review in the Supreme Court of an Act of Congress, but it also
directed by mandamus that Secretary of State James Madison
deliver Marbury's justice of the peace commission to him
contrary to the desires of President Jefferson. While not
bearing upon the immunity question directly, it was apparent
that the Executive Branch was not immune from action by the
Judicial Branch in enforcing mandates of the Constitution. In
fact, Chief Justice Marshall said of Marbury's rights and
remedies: "The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of the
laws, whenever he receives an injury." 5 U.S. (1 Cranch) at 163.

However, in Mississippi v. Johnson, 71 U.S. 475 (1867), the
Supreme Court refused to enjoin President Andrew Johnson from
enforcing the Reconstruction Acts. Chief Justice Salmon P.
Chase, writing for a unanimous Court, declined to enjoin
enforcement of the legislation even though it was allegedly
unconstitutional. He distinguished Marbury by stating that it
only related to ministerial duties involving no discretion while
these Acts related to "executive and political" duties involving
broad discretion. To enjoin the President would be to restrain
him from carrying out his constitutional responsibility to
execute the laws. Enjoining him would threaten the separation of
powers between the branches and the independence of the
President. See similarly, Kendall v. United States, 37 U.S. 524,
610 (1838), and National Treasury Employees Union v. Nixon, 492
F.2d 587, 608-612 (D.C. Cir. 1974).

Of course, the complaint of Paula Corbin Jones in this civil
case relates neither to the ministerial nor the executive duties
of the President. The allegations relate to alleged conduct of
the President while he was Governor of Arkansas. (The
allegations, it might be noted, also do not relate to any
ministerial or executive duty of the Office of Governor.) The
Justice Department, in its brief, stated that it knew of only
three private suits based on pre-presidential conduct which had
been adjudicated during the President's term in office. These
three were (1) an action against Theodore Roosevelt and the
Board of Police in New York City, which was resolved in the
Board's favor in 1904, People ex rel. Hurley v. Roosevelt, 179
N.Y. 544 (1904); (2) A damage suit against Harry Truman based
upon his conduct as a county judge in 1931, resolved in Truman's
favor in 1946, Devault v. Truman, 194 S.W. 2d 29 (Mo. 1946); and
(3) a suit against John F. Kennedy in California Superior Court
asserting a tort claim from an automobile accident occurring
during the 1960 campaign, which was ultimately settled, Bailey
v. Kennedy, No. 757,200 (Cal. Super. Ct. 1962).

However, the case most applicable to this one is Nixon v.
Fitzgerald, cited previously. In a 5-4 decision, the Supreme
Court decided that President Nixon had absolute immunity from a
suit brought by A. Ernest Fitzgerald, a management analyst with
the Department of the Air Force, whom the President ordered
fired because he had given congressional testimony on cost
overruns which embarrassed his superiors in the Department of
Defense (and presumably embarrassed the President also).
Fitzgerald sued for damages. The district court rejected
President Nixon's assertion of Presidential immunity. The court
of appeals affirmed, but the Supreme Court reversed, holding
that the President had absolute immunity from a civil suit for
damages resulting from official actions taken by the President
while in office. The majority opinion of Justice Lewis Powell
was hotly disputed in a dissent by Justice Byron White, in which
Justices Blackmun, Brennan and Marshall joined. The majority
opinion was in accord with the view of the scholar, Edward S.
Corwin, in discussing the President's immunity from judicial
process. Edward S. Corwin, The President: Office and Powers 138
(3d ed. 1948).

But the facts of Fitzgerald, as stated previously, are not the
same as those in this case. Mr. Nixon was President when he
fired Mr. Fitzgerald and was acting in his capacity as the head
of the Executive Branch. Mr. Clinton was not President and was
not even the President-elect when the alleged cause of action
arose in this case.

The Constitution, of course, is silent on all of this. The
framers debated even the subject of whether the President should
be subject to impeachment for criminal acts and, if so, who
should conduct the trial. There is nothing in the document
relating to civil actions. Justice Story, supra, was of the mind
that the President possessed immunity from civil suit, and the
Supreme Court in Fitzgerald agreed in a severely divided opinion
that the President was civilly immune from suits brought for
official actions taken while in office.

Thus, the hard fact is that these issues of immunity, whether
absolute or qualified, have been left in the hands of the
Judicial Branch, particularly the Supreme Court. This District
Court is not activist in nature and is not inclined to "make
law" where none exists. As stated by Chief Justice John Marshall
in Marbury v. Madison, however: "It is emphatically the province
and duty of the judicial department to say what the law is." 5
U.S. (1 Cranch) 137, 177 (1803).

This Court recognizes the reasoning of Justice Powell and his
thin majority in Nixon v. Fitzgerald that the President has
absolute immunity from civil damage actions arising out of the
execution of official duties of office. However, this Court does
not believe that a President has absolute immunity from civil
causes of action arising prior to assuming the office. Nowhere
in the Constitution, congressional acts, or the writings of any
judge or scholar, may any credible support for such a
proposition be found. It is contrary to our form of government,
which asserts as did the English in the Magna Carta and the
Petition of Right, that even the sovereign is subject to God and
the law.

Therefore, the President's Motion to Dismiss on Grounds of
Presidential Immunity is denied.

Limited or Temporary Immunity from Trial

The question does not end here, however, because the intent of
the Supreme Court in Nixon v. Fitzgerald would seem to carry
this case beyond the question of absolute immunity from civil
suit. The language of the majority opinion by Justice Powell is
sweeping and quite firm in the view that to disturb the
President with defending civil litigation that does not demand
immediate attention under the circumstances would be to
interfere with the conduct of the duties of the office.

Justice Powell states unequivocally the following: "Because 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." 457 U.S. at
751. He adds:

In view of the visibility of his office and the effect of his
actions on countless people, the President would be an easily
identifiable target for suits for civil damages. Cognizance of
this personal vulnerability frequently 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
Presidency was designed to serve. 457 U.S. at 754.

Chief Justice Burger expressed the same theme in his concurring
opinion: "Exposing a President to civil damages actions for
official acts within the scope of the Executive authority would
inevitably subject Presidential actions to undue judicial
scrutiny as well as subject the President to harassment." 457
U.S. at 762.

Of course, in the preceding part of this opinion, this Court has
pointed out that President Clinton's alleged acts took place
before he was President and that he was not acting in the scope
of Executive authority. Nonetheless, the concerns expressed by a
majority of the Supreme Court are not lessened by the fact that
these alleged actions preceded his Presidency, nor by the fact
that his alleged actions would not have been within his official
governmental capacity anyway. The problem, still, is essentially
the same--the necessity to avoid litigation, which also might
blossom through other unrelated civil actions, and which could
conceivably hamper the President in conducting the duties of his
office. This situation, as stated by Justice Powell in one of
the preceding quotations from Nixon v. Fitzgerald, could have
harmful effects in connection not only with the President but
also with the nation in general.

It is therefore the view of this Court that although President
Clinton is not entitled to have this action dismissed on the
basis of immunity, he should not have to devote his time and
effort to the defense of this case at trial while in office.

This is not a case in which any necessity exists to rush to
trial. It is not a situation, for example, in which someone has
been terribly injured in an accident through the alleged
negligence of the President and desperately needs to recover
such damages as may be awarded by a jury. It is not a divorce
action, or a child custody or child support case, in which
immediate personal needs of other parties are at stake. Neither
is this a case that would likely be tried with few demands on
Presidential time, such as an in rem foreclosure by a lending
institution.

The situation here is that the Plaintiff filed this action two
days before the three-year statute of limitations expired.
Obviously, Plaintiff Jones was in no rush to get her case to
court and, in fact, has stated publicly and in her brief that
her lawsuit came about in an effort to clear her name of
allegations of sexual activity involving then-Governor Clinton.
Her complaint, in paras. 41-47, discusses in detail this
situation and indicates that suit was brought because of the use
of the name "Paula" in an article appearing in The American
Spectator, in which the author purportedly obtained his
information from state troopers, including Defendant Ferguson.
Consequently, the possibility that Ms. Jones may obtain a
judgment and damages in this matter does not appear to be of
urgent nature for her, and a delay in trial of the case will not
harm her right to recover or cause her undue inconvenience. For
want of better phraseology, this amounts to the granting of
temporary or limited immunity from trial as Fitzgerald seems to
require due to the fact that the primary defendant is the
President. The court believes that such ruling is also permitted
under Rule 40 of the Federal Rules of Civil Procedure allowing
district courts to place matters upon the trial calendar "as the
courts deem expedient." Further, such limited immunity from
trial would seem to be justified under the equity powers of the
Court.

By putting the case on hold, as far as trial is concerned, the
Court avoids any tolling of the statute of limitations problems
which might otherwise be presented if the case were dismissed
without prejudice. Despite the fact that the President considers
himself estopped to object to a refiling, the Court believes
that a delay of the trial is the better way to proceed.

This does not mean, however, that the case is put on the shelf
for all purposes. There would seem to be no reason why the
discovery and deposition process could not proceed as to all
persons including the President himself. This approach
eliminates the problem that witnesses may die, disappear, become
incapacitated, or become forgetful due to the passage of time.

Because there is too much interdependency of events and
testimony to proceed piecemeal, the allegations against the
trooper will be tried at the same time as those against the
President. His case is integrally related to the allegations
against the President; both cases arose out of the same alleged
incident; and while the suit against the Trooper has unrelated
matters based upon his alleged actions and statements subsequent
to the alleged incident, it would not be possible to try the
Trooper adequately without testimony from the President.

III.

Conclusion

The Court has attempted to follow its understanding of Nixon v.
Fitzgerald and other cases as well as to adhere to the
historical framework involved. Most importantly, the Court has
sought to give effect to the full meaning of the separation of
powers doctrine originally enunciated by Montesquieu and
implicit in the founding fathers' structure of the Constitution.
Essential Presidential prerogatives are "rooted in the
separation of powers under the Constitution." United States v.
Nixon, 418 U.S. 683, 708 (1974).

On the other hand, in situations in which the President was not
the holder of his office when the action allegedly arose, there
would seem to be no immunity against civil litigation. The
rights of Plaintiff Jones as an American citizen must be
protected. Sub Deo et lege is our law as well as the law of
Great Britain. No one, be he King or President, is above the
law.

To protect the Office of President, however, from the potential
harm that could result from unfettered civil litigation, and to
give effect to the policy of separation of powers, it is
necessary to provide that the President cannot be tried in the
context presented here until he leaves office. President
Clinton's term in office, if he is re-elected in 1996, would end
no later than January 20, 2001. An earlier termination might
come on January 20, 1997, which is only slightly over two years
away. By permitting discovery as to all including the President,
the Court is laying the groundwork for a trial shortly after the
President leaves office.

In granting limited or temporary immunity from immediate trial
to President Clinton, the Court wishes to emphasize that it
holds no brief for alleged sexual harassment, a matter of
important concern to many people. The importance of such issue
is another reason why there should be no absolute immunity in
this case, but only a temporary Presidential immunity from
trial.

Finally, the Court must express its awareness that this case is
one in which new law is being made. All of the references to
historical events and to other cases do not change that fact. In
making such a ruling, the Court is also not unmindful of the
fact that to this extent the separation of powers has been
breached. But it has happened before in many cases including
United States v. Nixon, supra, and many of the landmark
decisions of Chief Justice John Marshall. In the end, the
decision must be made by the courts when there is doubt and only
limited precedent.

As previously noted, it "is emphatically the province and duty
of the judicial department to say what the law is." Marbury, 5
U.S. (1 Cranch) at 177. United States v. Nixon reaffirmed that
statement: "We therefore reaffirm that it is the province and
duty of this Court `to say what the law is' with respect to the
claim of privilege presented in this case." 418 U.S. at 707.
That is what this Court has tried to do, keeping in mind the
words of Chief Justice John Marshall that "we must never forget
that it is a constitution we are expounding." McCulloch v.
Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819), FN 4 and that it
is intended to endure for generations and to be applied to the
various crises of human affairs.

The President's motion seeking immunity from suit is denied. The
court will issue a scheduling order in due course.

IT IS SO ORDERED this 28th day of December 1994.

 Susan Webber Wright

UNITED STATES DISTRICT JUDGE



FN 1 In Prohibitions Del Roy, 77 Eng. Rep. 1342,1343, 12 Co.Rep.
64, 65 (K.B. 1608). Lord Coke wrote:

[B]ut His Majesty was not learned in the law of his realm of
England, and causes which concern the life, or inheritance, or
goods, or fortunes of his subjects, are not to be decided by
natural reason but by the artificial reason and Judgment of law,
which law is an act which requires long study and experience,
before that a man can attain to the cognizance of it: that the
law was the golden met-wand and measure to try the causes of the
subjects; and which protected His Majesty in safety and peace:
with which the King was greatly offended, and said, that then he
should be under the law, which was treason to affirm, as he
said; to which I said, that Bracton saith, Quod Rex non debet
esse sub homine, sed sub Deo et lege. [That the King ought not
to be under any man. but under God and the law.]

quoted in DAVID MELLINKOFF, THE LANGUAGE OF THE LAW 203 (1963).

 In Catherine Drinker Bowen's book, The Lion and The Throne, the
situation which led to this opinion is discussed in some detail.
The events of this period in English legal and political history
were conclusive in determining the end of "the divine right of
Kings" and subjecting the King to the law. This is historically
important to us in that the the founding fathers cast very
little light (outside of the impeachment provision) upon suits
against the President, and this matter was never addressed by
Congress in passing laws enacted pursuant to the Constitution.
It must be assumed that the rights of the President do not rise
above the rights of an English monarch in the early 17th
Century.

Despite these statements by Lord Coke that the King was subject
to the law, there existed contemporaneously in England the rule
that "the King can do no wrong," a relic presumably rooted in
the divine right of Kings. Blackstone expressed it this way:

Besides the attribute of sovereignty, the law also ascribes to
the King, in his political capacity, absolute perfection. The
King can do no wrong: which ancient and fundamental maxim is not
to be understood, as if every thing transacted by the government
was of course just and lawful. but means only two things. First.
that whatever is exceptionable in the conduct of public affairs,
is not to be imputed to the King. nor is he answerable for it
personally to his people; for this doctrine would totally
destroy that constitutional independence of the crown which is
necessary for the balance of power in our free and active, and
therefore compounded, constitution. And, secondly, it means that
the prerogative of the crown extends not to do any injury; it is
created for the benefit of the people. and therefore cannot be
exerted to their prejudice.

The King, moreover, is not only incapable of doing wrong, but
even of thinking wrong: he can never mean to do an improper
thing; in him is no folly or weakness. WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND 6 (Chitty ed. 1855)
(emphasis in the original). Of course, when Blackstone
published his Commentaries this idea was already ludicrous in
the light of the history of the English monarchy. A litany of
the wrongs, weaknesses and sins of English kings would establish
that they were not only capable of "doing wrong" but also of
"thinking wrong" and were replete with folly and weakness.

The English concept of kingship never entered into the law of
the United States, although in England it apparently exists
today to give the Queen an absolute immunity from being sued for
personal torts in the civil courts." R. J. Gray, Private Wrongs
of Public Servants, 47 CAL. L. REV. 303, 307 (1959). See also
Mayer G. Freed, Executive Official Immunity for Constitutional
Violations: An Analysis and a Critique, 72 NW U. L. REV. 56
(1977).

United States did not adopt through the reception statutes those
aspects of English law relating to the monarchy since kings and
queens are contrary to our form of government. Thus what remains
of our English heritage on this point are the basic documents of
English liberties--the Magna Carta, the Petition of Right,
Habeas Corpus, and the English Bill of Rights.

Moreover, as Chief Justice John Marshall pointed out in Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). the King is
subject to being "sued" in the form of a petition "and he never
fails to comply with the judgment of his court."

 FN 2 Russell Kirk cites Sir Henry Maine for the proposition
that "the office of the President really is the office of a
King--the chief difference being that the American President is
subject to election. at fixed terms, and that the office is not
hereditary." He adds: "Maine even suggests that the framers of
the Constitution may have had in mind the powers of George III
when they established the powers of the American presidency." He
continues in that vein discussing how powerful an office it is.
He adds, however, that the restraint exercised by the first six
presidents prevented the reduction of the legislative and
judicial branches to insignificance. RUSSELL KIRK, THE ROOTS OF
AMERICAN ORDER 427-428 (1974). This seems to be an exaggeration,
however, since during that period of time, the opinions of Chief
Justice John Marshall sufficed to prevent the Executive Branch
from subverting the Judicial Branch, although the first six
presidents did exercise substantial restraint, particularly
Washington and Adams. It seems much more likely that in
providing for the Executive Branch, the founders did not have
George III in mind at all, except in an unfavorable sense. The
"George" that they likely had in mind was George Washington. The
Executive Branch was probably modeled for the first man to
occupy it--which may explain why even the insertion of an
impeachment provision for criminal offenses was a matter of
debate.

FN 3 Some attribute this paper to James Madison. In I THE PEOPLE
SHALL JUDGE 312 (University of Chicago Social Science Staff
1949) its author is listed "Hamilton or Madison."

 FN 4 As explained by Judge Robert H. Bork, Chief Justice
Marshall was pointing out that "there are differences in the way
we deal with different legal materials . . . By this [Chief
Justice Marshall] meant that narrow, legalistic reasoning was
not to be applied to the document's broad provisions, a document
that could not, by its nature and uses, `partake of the
prolixity of a legal code.' " ROBERT H. BORK, THE TEMPTING OF
AMERICA 145 (1990).