[Note: This Order was later overturned on Appeal.]
December 28th 1994
IN THE UNITED STATES DISTRICT COURT
WESTERN DIVISION ARKANSAS
PAULA CORBIN JONES,
WILLIAM JEFFERSON CLINTON
and DANNY FERGUSON,
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
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
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
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
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 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.
[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.,
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)
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
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.
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
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.
II. 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.
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
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
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
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
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
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
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