[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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