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The American Public has been privy to the President's preference for boxers over briefs, followed the relative success and failures of his various diets, and been made to suffer through his attempts to play the saxophone. President Clinton has invited the American public into virtually every corner of his life. Despite this, he recently asserted presidential immunity from civil damage lawsuits in the case of Clinton v. Jones.
1 He apparently has decided that the respect and deference traditionally accorded to the leader of the free world may be beneficial to take advantage of after all.Ms. Paula Jones, employee of then-governor Clinton, brought suit to recover $700,000 in damages from the President, alleging that he had made "abhorrent" sexual advances to her while she was in his employ in 1991. Ms. Jones further charged that her rejection of those advances resulted in punishment by her supervisors in the state job which she held at the time. The President's claim of presidential immunity from civil damages litigation was rejected by a unanimous Supreme Court in its decision of May 27th of this year.
2 The Court held that the claim of immunity for unofficial acts was without foundation in precedent or the doctrine of the separation of powers.The Court further rejected the claim that exposure to lawsuits would place an unacceptable burden upon the ability of the President to perform his official duties.
3Precedent
Considering the question of whether or not the President, like other officials, is subject to the same laws that apply to all citizens, the Court decided that no precedent existed for granting a public official immunity from civil suits pertaining to unofficial acts. In this case, the personal, not professional, conduct of the President was at issue. Furthermore, the justices decided, no precedent existed for judicial interpretation that the Constitution affords protection against civil damage litigation for events which occurred before a respondent had entered public office.
In contrast, the Court has long recognized the right of limited presidential immunity with regard to official acts -- actions carried out under the auspices of the office of the presidency. This tradition goes back to Spalding v. Vilas (1896). There the Court held: "In exercising the function of his office, the head of an Executive Department, keeping within the limitations of his authority, should not be under any apprehension that the motives that control his official conduct may at any time become the subject of inquiry in a civil suit for damages. It would cripple the proper and effective administration of public affairs as entrusted to the Executive Branch of the government if he were subject to any such restraint."4
Some commentators took the matter further, pressing the point that the successful conduct of the office of the presidency required immunity from criminal sanction for official acts.
Justice Storey argued that "The President cannot 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 to posses an official inviolability." 5
More recent case law has affirmed this notion of presidential immunity for official acts. The Court held in Nixon v. Fitzgerald (1982) that such license represented "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."6
The well-substantiated claim of immunity for official acts, however, represents a different principle entirely than what Clinton was attempting to maintain. President Clinton was asserting the claim of official privilege for unofficial acts. He sought to place himself above the law, on a higher plane of justice than every other individual in the country. He asked us to believe that the faith which the nation places in him as a politician obviates his responsibility as a citizen.
The Court, however, affirmed the principle asserted by Justice Burger in United States v. Nixon (1974) that any claim of "presumptive privilege must be considered in light of our historic commitment to the rule of law."
7Separation of Powers
The assertion was made in defense of Clinton that a decision which could result in leaving the President at the mercy of the Judicial Branch represented a violation of the separation of powers mandated by the Constitution. In other words, the claim was advanced that calling the President to account for his actions in a court of law, the only arbiter of justice in the land, would in fact be a violation of the law. Presidents do not generally enjoy deferring to anyone.
The tradition of tension between the Executive and Judicial branches of the government is old. President Jefferson, writing to U.S. Attorney George Hay in 1807, argued that "The leading principle of our Constitution is the independence of the Legislative, Executive, and Judicial branches of each other, and none are more jealous of this than the judicial. But would the executive be independent of the judiciary if he were subject to the command of the latter and to imprisonment for disobedience which would withdraw him entirely from his duties?"8
Jefferson concluded that "to comply with such calls would leave the nation without an Executive Branch, whose agency, nevertheless, is understood to be so constantly necessary that it is the sole branch which the Constitution requires always to be in function."
9Potential intrusions upon the autonomy of any of the branches of government is cause for concern. The fact remains, however, that determinations of legal questions, including the question of whether the Judicial Branch has the authority to determine the scope of its own authority, remain the province of the Judiciary. As expressed in the landmark decision of Marbury v. Madison (1803): "It is emphatically the province and duty of the judicial department to say what the law is."
10This principle was reaffirmed in Baker v. Carr. There the Court held: "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution."
11The Court, therefore, is simply carrying out its constitutionally-mandated functions when adjudicating claims of right advanced by the President. The claim of absolute immunity for the President, however, would pose a great threat to the power of the Judiciary.
Justice Burger declared for the Court in U.S. v. Nixon: "The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice would plainly conflict with the function of the courts under Article III of the Constitution."
12Complete autonomy of each branch of government is neither practical nor desirable in a constitutional democracy wherein the three branches work together.
The separation of powers, delineated in the Constitution, was never intended to correspond to absolute independence of operation.
Justice Jackson explained in Youngstown Sheet & Tube Co. v. Sawyer: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."
13In sum, the constitutional weight of the interest to be served must be balanced against an appreciation of the dangers of judicial intrusions upon the authority and proper jurisdiction of the Executive Branch.
Political Ramifications
Though the Court in Clinton v. Jones remained unconvinced that its decision would prompt a surge of frivolous lawsuits, the fact the Presidency is a unique office with unique responsibilities and vulnerabilities remains.
The Court in Clinton cited the paucity of suits filed against sitting presidents for private actions in defense of its finding that an increased number of such suits would pose a real problem for the President.
Since 1960, when the last civil damages lawsuit was filed against a sitting president, however, the number of civil lawsuits filed annually in Federal District Court has surged from less than sixty thousand to two hundred and forty thousand.
14Additionally, an increasingly complex economy and a corresponding increase in complex statutes, rules, and regulations have created potential liability with or without fault.
Once the increased likelihood of the President being called to account for his actions has been established, opponents of the Clinton decision stress the importance of ensuring that the President remain free of the petty demands of jurisprudence that he might more ably perform his duties. Some have argued that the very structure of government alone facilitates requisite accountability on the part of the President.
We are admonished by Justice Breyer in the majority opinion in Clinton to appreciate the fact that "his activities have an unusually important impact upon the lives of others." Justice Breyer further urges our appreciation of the fact that the sole power and authority of the Executive Branch of the government are invested in only one person, whereas such responsibility is spread among many in the other branches.
The President alone embodies an authority bestowed by the entire electorate. The Founders, he argues, "created this equivalence by consciously deciding to vest Executive authority in one person rather than several to focus, rather than to spread, Executive responsibility and thereby facility accountability."
15The Court accepted this strain of logic in Nixon v. Fitzgerald, declaring: "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."16
The Court further asserted in that case that "Cognizance of this personal vulnerability frequently could distract a president from his public duties, to the detriment not only of the President and his office but also the Nation that the presidency was designed to serve."17
The question then becomes whether or not a president who may freely operate above the law was envisioned and desired by the Framers of the Constitution, and whether this circumstance does not operate to the detriment of the Nation.
Some have argued that even the granting of absolute presidential immunity from litigation would not leave the public unprotected against presidential misuse of power. In granting immunity for official acts in Nixon v. Fitzgerald, Justice Powell proffered a number of informal checks on the president's power. Upon close examination, however, not one of these purported checks presents a real barrier to any action which a president may feel inclined to perform.
First, Justice Powell points to public scrutiny in the press as a viable means of controlling a President. Upon reflection, however, we realize that President Clinton has all but admitted to a twelve year extramarital affair, provided no satisfactory explanation for the clearly extra-legal real estate venture Whitewater and the related cover-up attempts, nor has he managed to absolve himself of quite serious charges of illegal campaign financing practices. Each of these scenarios was played out ad nauseum by the media. Regardless of whether or not one presumes a media bias in one direction or another, the fact remains that public opinion has failed to sanction the President for these actions and thus can not be considered a legitimate check on his capacity to break the law. The fact that several indiscretions took place either before or during his first term in office refutes the claim that the desire for reelection compels presidents to adhere to operate within the confines of the law. Furthermore, this claim has no bearing on second term presidents. Public opinion can not take the place of legal action.
A similar though more extreme solution proposed by Justice Powell is impeachment. Unfortunately, the legal maneuvering, time, and trauma to the nation involved in impeachment proceedings combine to negate the effectiveness of this alternative as a practical solution to the vast majority of presidential wrongdoing.
The nature and gravity of the crime would have to be so severe as to compel the entire nation to condemn the president with one accord. This leaves an entire sea of crimes unpunished and open to a President who feels so inclined.
Finally, Justice Powell naively asserts that the desire to "maintain the prestige of the presidency" and "a president's traditional concern for his historical stature" serve to impel any president to adherence to the law.
To claim that such concerns motivate President Clinton is to invite the charge of being facetious, to which one would have absolutely no alternative but to plead guilty in the first degree.
The fact that public opinion largely supports the President diminishes the importance of these considerations which at one time may have served as legitimate and powerful checks against Presidential immunity and thus represented reasons to support such immunity in some cases. That is not the case today.
Thus taking into account legal precedent, the structure of the Constitution, and practical concerns regarding the wisdom of holding the President accountable for actions in his private life, any claim of presidential privilege can not be granted without serious investigation into why that privilege is necessary.
It can never be automatic if we wish to remain faithful to our national traditions and our system of democratic government
The burden must lie with the President to demonstrate why his office mandates his immunity from the law.
ENDNOTES:
1 Clinton v. Jones U.S. 95-1853 (1997)
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