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Jones vs. Clinton

May 27, 1997 at 12:00 AM EST
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TRANSCRIPT

ELIZABETH FARNSWORTH: We get two different perspectives on today’s decision from two law professors who signed friend of the court briefs in the case. Kathleen Sullivan of Stanford University and Ronald Rotunda of the University of Illinois-Urbana-Champaign. Thanks for being with us. Kathleen Sullivan, I believe you argued that the President shouldn’t have to face this kind of civil litigation. What’s your reaction to the ruling?

KATHLEEN SULLIVAN, Stanford University Law School: Well, Elizabeth, the ruling is unanimous, but I think we have to bear in mind that it’s somewhat narrow. This was a case in which there was a clash of great principles, the principle of the importance of the presidency and his importance to all of us on the one hand; the importance of the rule of law and every person’s right to have their day in court on the other. And I think Stuart Taylor is right to say that it was a little surprising that the court didn’t split the difference between those two important principles, but the reason the court didn’t do that is that Justice Stevens writing for the unanimous court said we trust the lower federal courts to split that difference; we trust the lower federal courts to manage cases well and to manage cases like this with attention to the fact that it is not just any citizen they’re talking about; it’s the President of the United States.

And it’s very important to note that this case did not say that the President could be treated just like anybody else when he goes to court. Justice Stevens says you can’t hail the President into the courthouse in Little Rock like you could another citizen; you have to allow him to engage in videotaped testimony and that sort of thing if a trial ever goes forward.

Justice Stevens also said that the presidency is unique in all the ways President Clinton had argued it is. He’s the only person who works alone for us 24 hours a day. It’s not like the many judges in the judiciary or the many congress people in Congress. So Justice Stevens was saying when the case goes back to the lower federal courts, we trust them and we trust the lawyers not to turn the case into a political side show but to manage it with attention to the fact that it’s the presidency we’re talking about. And he should not be distracted from his public duties if he can make a showing, so bottom line the court said we won’t give blanket delays to the President but we will let him come forward and show that in particular instances he needs to go to a NATO meeting, rather than perform a deposition. And I think that if the lower courts are responsive to Justice Stevens, the President will have gotten a great deal of what he asked for. He’ll just get it in those courts, rather than from the Supreme Court.

ELIZABETH FARNSWORTH: And Ronald Rotunda, you’d argued in support, in the brief–your amicus brief in support of Paula Jones. Is this how interpret you the ruling?

RONALD ROTUNDA, University of Illinois Law School: I think it did exactly what we suggested it should do in our amicus brief, and it’s a very big victory I think for Paula Jones and the rule of law. What the court basically is saying is that no man is above the law; that the litigant can haul anybody into court. Of course, if the President is going to go off to Helsinki and do a negotiated treaty, the trial judge will arrange that to make sure that it doesn’t interfere with his schedule, but that’s nothing that the plaintiff ever was threatening anyway; that basically President Clinton got nothing that he asked for from the Supreme Court and would have gotten more had he never appealed the trial judge’s initial decision.

ELIZABETH FARNSWORTH: Mr. Rotunda, do you think this is a very, very important decision? Isn’t it the first time that Justices have ever said that a sitting president can be forced to answer a lawsuit over events that occurred before he became president?

RONALD ROTUNDA: This is an important decision, but it falls within the precedent of the earlier cases. I frankly wasn’t surprised about it. The court would have to make up new laws to come out the other way. We’ve had presidents sued before, but it’s never gotten up to the U.S. Supreme Court. We had a lot of presidents give evidence in trials, which is ultimately what President Clinton didn’t want to do here. So in that sense I don’t think it’s going to affect the office of president very much because it’s really very well within the earlier precedent.

It is significant for this particular president because the nature of the allegations are fallacious and have a lot of media attention. If–if they’re proven true, that would, I think, damaging to Mr. Clinton personally. If he’s vindicated, that would be helpful to him personally, but in terms of the basic rule of law this is well within the precedent that the Supreme Court has decided in a lot of other cases. President Nixon and the tapes case–in fact, Justice Stevens citing some research I did listed a series of presidents that have given testimony under oath. And the presidency–you know, the sky hasn’t fallen–the presidency continues.

ELIZABETH FARNSWORTH: Kathleen Sullivan, do you agree that this case won’t necessarily be detrimental to the office of the presidency?

KATHLEEN SULLIVAN: I think that remains to be seen. Justice Stevens, who is an extraordinarily courtly gentleman of the old school who had a tremendous career as a litigator believes that lawyers will behave themselves well and this won’t cause too much of a burden to the presidency; Justice Breyer, concurring, said he wonders if Justice Stevens has understated the danger to the presidency. In this age of litigious society we’ve got–a society in which many more people go to court over many more rules and regulations than they ever did before, where the size of the federal judiciary has expanded. There’s a real danger posed by this case that it will invite more lawsuits, perhaps even a flood of lawsuits. But what Justice Stevens said today for the court is if that happens, then we’ll reconsider. If there were an undue burden on the presidency, if the separation of powers were threatened because judges were hauling the president into court too frequently, then maybe we would look at a separation of powers problem case by case.

So I think it remains to be seen. I think Justice Stevens was betting this case is unique. Justice Breyer was warning it may not be and that later presidents, Democrat and Republican alike, might need to cite the Constitution in particularized cases, saying that they don’t want to respond to particularized suits, which are vexatious or frivolous. Justice Stevens was saying most of those cases will be thrown out.

ELIZABETH FARNSWORTH: Mr. Rotunda, you heard Stuart Taylor say that the president’s counsel may try now to get the case dismissed. Would you explain that.

RONALD ROTUNDA: I couldn’t hear you. The president will get the case dismissed?

ELIZABETH FARNSWORTH: Did you hear me? Stuart Taylor said that–when asked about the next step here, that the president’s counsel might next try to get the case dismissed. Could you explain the legal arguments there.

RONALD ROTUNDA: I think he’s going to have trouble getting the case dismissed. Normally, what you do next in litigation is have what we call discovery; that is, you collect documents; you interview the witnesses under oath, they’re called depositions. By the time of the civil trial, itself, there is supposed to be nothing that has surprised either side. It’s only really in Perry Mason episodes that there’s this dramatic thing at the closing moments of trial. And because of that a lot of cases are settled before they actually go to trial. In fact, at the actual trial, if there is one, the president–this is a civil case–the defendant doesn’t even have to show up–and President Clinton would probably not show up, and we’d have his videotaped deposition in lieu of live testimony.

Now, Paula Jones has made some very specific allegations. If the evidence shows that they’re all false, then the president can move for summary judgment and she would probably be prosecuted for perjury; that is, when we’re talking about harassing lawsuits, the Department of Justice is not going to let that happen to the president. And if we have a world where somehow all the judges have gone bananas and allowed the president to be harassed, Justice Stevens points out Congress could always pass a law immunizing the president or setting up special procedures for the president, just like now when you sue the government, it has a longer time to answer your complaint than a normal civil litigant.

So if there is a problem, the statute can take care of it, the president could try to get the case dismissed on summary judgment grounds, and if the case really is frivolous, it’s not going to last very long anyway. Her complaint was, oddly enough, very specific, and if she’s–if she’s lying, she’s going to be in real trouble, and if she’s not lying, she has what we call a valid cause of action.

 ELIZABETH FARNSWORTH: Kathleen Sullivan, in the process of discovery, which would now follow, would the depositions–for example, a deposition of the president be public

KATHLEEN SULLIVAN: Very unlikely, Elizabeth. What Justice Stevens was, in effect, telling the district court judge to do is manage this case with care, not just with respect to delays, but to how much you let the evidence get out in public. There’s a very good chance that the district judge could order that any deposition taken of the president, if that should happen, would remain sealed.

ELIZABETH FARNSWORTH: Remind people what depositions are really quickly too.

KATHLEEN SULLIVAN: A deposition is an interview with a witness or a party that takes place by the lawyers outside of a court, and it can be introduced later at the trial, itself, so it’s a mini trial outside a courtroom. And if that were to take place, the judge would have it quite open to her to seal that deposition and make it unavailable to the press or to the public until such later time as she deemed appropriate if she thought it would interfere with the president’s public duties to do so. Her concern has to be not only for Paul Jones’ lawsuit but with making sure that the public has the benefit of President Clinton’s attention and duties full-time and even revealing a deposition could be thought in some circumstances to interfere with those duties.

ELIZABETH FARNSWORTH: Mr. Rotunda, do you think that kind of thing should be public?

RONALD ROTUNDA: You’ve got Supreme Court cases saying there’s a first amendment right that civil trials, as well as criminal, be public. If the president is talking about where some missile silos are buried or discussing how to build an H-bomb, that will be sealed, but talking about these private matters, this is a public trial, and it’s a public business. And, frankly, in a democracy, to say that the people should not know something I find offensive in a democracy, know ye the truth and the truth will set you free.

ELIZABETH FARNSWORTH: Kathleen Sullivan, what about that?

KATHLEEN SULLIVAN: Well, it’s a very appealing principle, but as we know, trials are not only just about the truth; they’re about a lot of other things. I think the priority now is for judges and lawyers to follow Justice Stevens’ admonition for the court to manage this case carefully with the respect for the public trust and not just the rights of a private litigant. The rights of a private litigant do not take precedent over all public interests.

I agree with Professor Rotunda that you need a compelling interest to keep something secret and nothing will be kept secret in this case just on the president’s say so. But we’re jumping the gun here because it’s not at all clear that a deposition of the president will even be taken at any point soon. It may be that the judge decides to allow other depositions to go forward of other witnesses, or perhaps of the trooper who’s a co-defendant in the case, without ever deposing the president. As the court made clear, the courts have been very ginger about making the president ever do something; to force the president into court or to force the president to respond to litigation demand is a very delicate matter, and the judge can be expected to handle it delicately.

ELIZABETH FARNSWORTH: Mr. Rotunda, does this decision give impetus to a settlement?

RONALD ROTUNDA: Well, I think so, absolutely; that is there will be discovery, or the thrust of discovery, and it is–there should be no surprises at the time of the trial, and there’s already been leaks from the White House that the settlement value has gone up for the plaintiff; that it’s going to be a little more expensive to settle today than it was yesterday, and it may be that we’ll never have a public trial because there will be a settlement, and the settlement may be before there are depositions, or at least before the president’s deposition. If I were the plaintiff’s lawyer, I would depose the president pretty near the end, and not in the beginning. I’d like to get all the other pieces of the puzzle put in place first.

ELIZABETH FARNSWORTH: Kathleen Sullivan, do you think this gives impetus to a settlement?

KATHLEEN SULLIVAN: It’s not clear, Elizabeth. The president has indicated that he has no interest in settlement. I don’t know if that will change, but we have to remember that this is not a huge development in the case. Paula–in the sense that Paul Jones is now back at square one. She now has to start to do all the kinds of things she set out to do at the beginning. And the possibility of a dismissal, just to mention one more point about the dismissal in addition to what Prof. Rotunda said, the president will argue, as Stuart Taylor said, that even if she did everything that’s alleged, that that isn’t a violation of her civil rights. A lot of things that are unpleasant in life don’t turn out to be a violation of federal law. And that will be one of the arguments that might prevent a deposition from ever happening.

ELIZABETH FARNSWORTH: Well, thank you both very much.

KATHLEEN SULLIVAN: Thank you.