[Congressional Record Volume 140, Number 67 (Wednesday, May 25, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: May 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
PRESIDENTIAL IMMUNITY FOR ACTS OCCURRING BEFORE ASSUMING OFFICE.
Mr. GRASSLEY. Mr. President, for the first time, a President of the
United States has been sued for acts occurring before he assumed
office.
Press accounts suggest that when he responds to the lawsuit, the
President will argue that he is immune from suit. Not being a lawyer, I
cannot say whether the law grants the President immunity in this
situation. I do know that two lawyers will, no doubt, have two
different opinions in this matter, even after reading the same case
law.
Whatever the President may legally be able to claim, I hope that he
will not rely on an immunity argument. No one, including the President,
is above the law. Consider the hypothetical situation that Prof.
Charles Fried has raised. Suppose that George Bush, before he was
President, had run over a swimmer in his speedboat.
What would be the reaction if the swimmer's widow could not bring
suit to recover for the injuries and loss of support? Even if her suit
were delayed until the President left office, the personal suffering
would be terrible.
It would be inappropriate to delay the lawsuit until an undetermined
time.
Statutes of limitations exist to make sure that the memories of
witnesses are fresh. Delaying the case would only serve to diminish the
memories of the parties, and harm the ability to determine the truth.
Although the President's efforts to perform his job might be harmed
by the lawsuit going forward, all other civil litigants face that
prospect as a matter of course.
Moreover, press reports indicate that the White House is considering
arguing that while immunity should apply to this case, it would not
apply to, for instance, a zoning dispute involving property the
Clintons owned. Does anyone think that zoning is more important than
sexual harassment?
So far, women's groups have stood on the sidelines in the Jones
versus Clinton case. They have been criticized in some quarters for
their hypocrisy. After all, they embraced Anita Hill without question
or reservation. There are many differences between Professor Hill's and
Ms. Jones's allegations.
One major difference is that Ms. Jones sought to bring her charges
before a Federal judge. Professor Hill chose not to pursue her claims
at the time. By the time she did bring them out in public, it was too
late to file them in court.
Ms. Jones is entitled to her day in court.
She will have the burden of proving her case, and the civil justice
system will resolve her claims in accordance with standard procedures.
But if the President relies on an immunity defense that is certainly
available to no one else, then Ms. Jones will not have her day in
court.
And that would mean that the issues in her case may not receive the
serious treatment that all such allegations deserve.
I know that institutional reasons are offered to justify immunity. It
is claimed that the President cannot take time away from his important
duties to give deposition testimony.
I agree that the danger of subjecting the President to potentially
frivolous lawsuits should be avoided. But I believe that all potential
civil litigants are in the same position as the President, even if not
to the same degree. Accordingly, I have strongly supported an effective
rule 11 of the Federal Rules of Civil Procedure.
Rule 11 allows courts to sanction attorneys who file frivolous cases
without having checked into the legal and factual validity of their
claims. The rule benefits all potential defendants, including the
President, by staving off the flood of frivolous suits the White House
fears would be unleashed in the absence of immunity.
The more than two centuries in which no such suits were brought,
combined with rule 11, make me believe that these fears are groundless.
Mr. President, the President may be within his rights to seek to
dismiss the case based on immunity.
But I hope that he will share my belief that everyone deserve his or
her day in court. And I hope also that he shares my beliefs that no one
is above the law, and that everyone deserves strong protection from
frivolous lawsuits.
Mr. President, I ask unanimous consent that there be printed in the
Record an editorial from the New York Times of May 25, 1994, entitled
``Dubious Immunity for a President.''
There being no objection, the editorial was ordered to be printed in
the Record, as follows:
[From the New York Times, May 25, 1994]
Dubious Immunity for a President
President Clinton's private attorneys are considering
asking a Federal court in Little Rock to spare Mr. Clinton--
at least while he occupies the White House--the duty to
defend a civil lawsuit based on alleged sexual misconduct
when he was Governor of Arkansas.
That would be a highly dubious claim of Presidential
privilege, one the courts would be unwise to adopt.
Presidents are immune from civil liability for their official
acts while in office. But extending that immunity to pre-
Presidential conduct is not justified. Presidents are, in the
first instance, citizens, no more above the law than other
citizens. Granting them immunity to civil litigation would
deny aggrieved litigants a timely chance at justice.
Paula Jones, a former Arkansas state employee, has accused
Mr. Clinton of making uninvited sexual advances to her in
1991, and then, as punishment for rejecting them, causing her
to be denied job promotions and conspiring with others to
defame her. That would be a serious abuse of official
position and a violation of her rights against sexual
discrimination and harassment.
Robert Bennett, Mr. Clinton's personal attorney, is
unlikely to contend seriously that Bill Clinton, citizen or
Governor, can indefinitely avoid answering such charges. But
he says: ``Think of the consequences. There could be
thousands of lawsuits'' if the courts entertain this one at
this time. He hints that he may ask the courts to stay any
legal action until his client is out of the White House,
whether that comes in 1997 or 2001. Justice delayed? He notes
that Ms. Jones waited three years to file her suit.
The Justice Department is researching the immunity
question, but it ought to weigh in only on the institutional
issue of whether any sitting President can be sued for civil
damages. The Department needs to stay clear of the merits of
the lawsuit, which is the turf of Mr. Clinton's hired private
attorney and an area where there is no reason for spending
public money.
Whatever the department's views, courts and the public are
entitled to discount them as the work of Presidential
subordinates or the product of institutional bias against
suing the Government.
The President's supporters say the case should be dismissed
or postponed because Ms. Jones's sponsorship by a group of
political enemies undermines her credibility. They also claim
that evidence may show she received salary increases rather
than workplace penalties after the alleged encounter. But
those are not reasons to delay the suit; they are disputed
issues to be adjudicated at trial.
When the Supreme Court in 1982 recognized civil immunity
for former President Nixon for firing a respected Pentagon
whistle-blower, it was protecting the President for suits
involving his official acts. The Court held that the chief
executive, with his unique duties under the Constitution,
must not be shackled with potential civil liability if he is
to perform his Presidential duties with the requisite courage
and directness.
The Court also suggested, in language Mr. Clinton's lawyers
could be expected to cite, that subjecting the President to
the toils of litigation would unduly burden a President.
``Diversion of his energies by concern with private lawsuits
would raise unique risks to the effective functioning of
government,'' the Court said.
Such concerns ought not to be exaggerated. Legal immunity,
even for official acts, can be costly. It can deny abused
citizens the very kind of accountability that democracy and
justice seem to demand. Four dissenters in the 1982 case
complained that the President was being placed ``above the
law.''
Presumably, President Clinton has weighed the political
risks of asking the courts for a stay of this lawsuit. Many
neutral observers might join his enemies in cries of ``above
the law'' that could echo through 1996. But for the nation to
create a Presidential right to delay civil justice would
grant a privilege even Richard Nixon did not seek.
There is no mountain of litigation now or on the horizon
that would justify this odd form of immunity. If Mr.
Bennett's prediction about a mass of intrusive lawsuits
proves correct, Congress can remedy that with legislation.
Until then, the broad principles of equal justice and equal
access to the courts cannot be sacrificed simply because of
the unseemly nature of this case.
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