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President's Supreme Court Reply Brief Re Paula Jones Case Deferment
May 28, 1996
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1995
WILLIAM JEFFERSON CLINTON,
PAULA CORBIN JONES, Respondent.
On Petition For A Writ of Certiorari
To The United States Court of Appeals For The Eighth Circuit
REPLY BRIEF FOR THE PETITIONER
TABLE OF CONTENTS
TABLE OF AUTHORITIES
REPLY BRIEF FOR THE PETITIONER
TABLE OF AUTHORITIES
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
Franklin v. Massachusetts, 505 U.S. 788 (1992)
National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1973)
Nixon v. Fitzgerald, 457 U.S. 731 (1982)
United States v. McDougal, No. LR-CR-95-173 (E.D. Ark. Mar. 20, 1996
United States v. Nixon, 418 U.S. 683 (1974)
United States v. North, 713 F. Supp. 1448 (D.D.C. 1989) aff'd 910 F. 2d 843 (D.C. Cir. 1990), cert denied, 500 U.S. 941 (1991)
United States v. Poindexter, 732 F. Supp. 142 (D.D.C. 1990)
Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app.
Sections 501-525 (1988 & Supp. V 1993)
Brief for Respondent A. Ernest Fitzgerald, Nos. 78-1783 and 80-945
(Sup. Ct. filed Oct. 29, 1981)
REPLY BRIEF FOR THE PETITIONER
The President's submission is straightforward: No President has ever before been compelled to submit to a civil damages action, directed personally against him, during his term in office. A decision with such serious ramifications for the Presidency and the nation should not be allowed to stand without this Court first considering the President's contention, founded on both the Court's decisions and statements by the Framers, that such lawsuits must in all but the most exceptional cases be deferred until the President leaves office.
Respondent does not -- indeed, cannot -- identify a single instance in which a court has compelled an incumbent President to defend a damages action directed at him personally. Nor does respondent explain why a fragmented panel of the court of appeals, rather than this Court, should decide the extraordinarily important constitutional question of whether a President may be compelled to do so. Instead, respondent's principal contentions are (i) that this is a "one-of-a-kind case" that can be litigated without interfering with the President's conduct of his office (Br. in Op. 8); (ii) that separation of powers principles permit a trial judge to require, review an sometimes reject -- specific showings by the President that a matter of state is sufficiently significant to justify altering the litigation schedule (Br. in Op. 12-14); (iii) that Nixon v. Fitzgerald, by providing Presidents with absolute immunity from liability for conduct within the "outer perimeter" of official duties, somehow precludes deferral of this litigation (Br. in Op. 16-18); and (iv) that this nation's historic traditions pose no bar to subjecting an incumbent President to civil damages litigation (Br. in Op. 19-20). Respondent is wrong at each turn.
1. This case is evidence, if any is needed, of the wisdom of the Court's observation in Nixon v. Fitzgerald that "the sheer prominence of the President's office" makes him "an easily identifiable target for suits for civil damages." 457 U.S. 731, 752-53 (1982). Respondent's brief in opposition characterizes this lawsuit as a "very simple dispute about what happened in a very short encounter between two people in a room," and one in which "[d]iscovery and trial... will not be burdensome." Br. in Op. at 10. The record, however, reveals that respondent's attorneys in fact intend to use this case as a vehicle for a far-reaching inquiry:
We'll be able to ask the President certain pertinent questions.... Was this a pattern of conduct that involved the use of police for private functions that would not be... part of their duty? Are there other women involved? Who are they?... [A]ll is on the table in the discovery deposition, including evidence that can lead to admissible evidence. So it's a pretty wide-ranging effort....
C.A. App. 122-23 (Tr. of ABC's Nightline (Dec. 28, 1994)). Respondent's counsel also stated that they will "exhaustively pursue" this line of inquiry with other witnesses, and may seek to compel an unprecedented physical examination of the President. C.A. App. 117-18 (Tr. of CNN's Daybreak (Dec. 29, 1994)).
Respondent, in other words, envisions litigation that not only threatens the President with $700,000 in damages and seeks to impugn his reputation, but that is specifically calculated to entangle him in the "discovery deposition" process. In addition, the district court found that discovery could not be conducted on even the claims against the President's co-defendant "without the heavy involvement of the President through his attorneys." Pet. App. 76. The inevitable consequence of such purportedly "uncomplicated" litigation (Br. in Op. i) will be substantially to divert the President from his Article II responsibilities.
It takes but a single lawsuit of this kind, in Fitzgerald's words, to "distract a President from his public duties, to the detriment of not only the President... but also the Nation that the Presidency was designed to serve." 457 U.S. at 753. That danger is especially great in the modern setting, where wide-ranging discovery is permitted and instantaneous, nationwide publicity is routinely used as a tool by litigants.
Moreover, the dangers of abuse of litigation against an incumbent President are not limited to a single case. Respondent reiterates the panel majority's conception that "the universe of potential plaintiffs" who might sue an incumbent President -- for reasons of partisanship, extortion, or publicity-seeking -- is "small." Br. in Op. at 11 (quoting Pet. App. 15). But no person becomes President without having been highly prominent for an extended period in the public or private sector. If the Court allows this case to proceed, it is difficult to believe that other potential litigants, encouraged by the spectacle, will not come forward in this of future Administrations, to use a lawsuit to distract, harass or obtain personal information about a President by "alleging unwitnessed one-on-one encounters that are extremely difficult to dispose of by way of pretrial motion." Pet. App. 27 (Ross, J. dissenting).
Respondent asserts that there is not extensive history of litigation against a sitting President being used for this purpose. Br. in Op. at 11. But there was no history of Presidents being sued for official acts before Nixon v. Fitzgerald. See 457 U.S. at 753 n.33[FN1]. The Court nonetheless granted certiorari in Fitzgerald, and afforded President Nixon an absolute immunity -- a much broader protection than is sought here -- because it recognized the danger that opportunistic litigation presents to the office of the Presidency. 457 U.S. at 753. The risk of opportunistic litigation is no less in a case of this kind than it was in Fitzgerald, and this Court's review is no less warranted here.
2.a. Respondent embraces the panel majority's view that the risk such litigation poses to the Presidency can be managed by allowing trial judges to exercise discretion over the scheduling of litigation. We explained in the petition why this supposed cure is worse than the disease: it will precipitate repeated confrontations between the President and federal or state trial courts, as those courts pass judgment on a President's requests that the litigation schedule be modified because of the demands of his office. As Judge Ross asked below (Pet. App. 29):
Is it appropriate for a court to decide, upon the President's motion, whether the nation's interest in the unfettered performance of a presidential duty is sufficiently weighty to delay trial proceedings? Once a conflict arises between the court and the President as to the gravity of an intrusion on presidential duties, does a court have the authority to ignore the President's request to delay proceedings?... [C]an a court dictate a President's activities as they relate to national and international interests of the United States without creating a separation of powers conflict?
The brief in opposition seeks to create the impression that trial judges will be highly deferential to the demands of the Presidency. It repeatedly quotes Judge Beam's formulation, according to which a trial judge may "reschedul[e] any proposed action by any party at any time should she find that the duties of the presidency are even slightly imperiled." Pet. App. 25, quoted in Br. in Op. 8, 12. But that is not the standard established by the prevailing opinion below, which stated that the President could obtain relief from a trial judge only if he could show that a specific aspect of the proceedings "interfer[ed] with specific, particularized, clearly articulated presidential duties." Pet. App. 16.
Moreover, under either standard, once trial judges are vested with discretion, they inevitably will exercise it in different -- and sometimes highly intrusive -- ways. While some may be deferential to the President, others surely will not be. And the affront to the separation of powers inheres in the very fact that a trial judge is empowered to review the President's official responsibilities to determine whether he should instead devote his attention to a private civil action.
One need look no further than this case to see the pitfalls in authorizing courts to review such matters. Here, the district court made a specific case-management determination, based on the particular facts of this case, that the trial should be stayed until the President leaves office. Pet. App. 70-71. The panel majority, notwithstanding its purported reliance on the discretion of trial judges, promptly reversed the stay as an abuse of discretion, without even explaining why the district court's evaluation of the facts was mistaken. Pet. App. 13 n.9.
This clash between the district court and the court of appeals -- and the disagreement within the court of appeals even as to the appropriate legal standard -- is symptomatic. It shows that the separation of powers cannot reliably be protected by requiring the President to make ad hoc showings about how specific aspects of the litigation will affect his ability to carry out his official duties. It also underscores the need for this Court to review this important issue.
b. In arguing that courts can oversee Presidential involvement in civil damages litigation, respondent, like the panel majority, relies heavily on the handful of cases in which Presidents have testified as third- party witnesses in criminal proceedings. Br. in Op. 12-13. The lesson of those cases, however, is the opposite of what respondent suggests: they show how difficult it is for courts to reconcile the demands of the judicial process with the responsibilities of the executive branch.
A President who testifies as a witness is involved in a one-time encounter with the judiciary. By contrast, a defendant faced with personal liability will be involved in every phase of the litigation. The opportunities for tension and conflict between the President and the courts thus increase exponentially. Moreover, a President who is a third-party witness ordinarily faces little risk to his reputation or financial well-being. When a President is a defendant in a damages action, the stakes are incalculably greater. The burdens and distractions that ensue inevitably will be far more intrusive than when the President is a witness.
Nonetheless, even in the far less burdensome context of third- party testimony by Presidents, the experience has been that the process of accommodation is painstaking  and should be undertaken only in cases of compelling need.  Even when the President is just a witness, the principle of separation of powers is strained to the limit. The course respondent suggests -- giving a trial court the power to manage the President's priorities to accommodate personal damages litigation -- pushes the separation of powers past the breaking point.
Finally, even in cases where only testimony or evidence has been sought from a President, this Court repeatedly has drawn a clear line between criminal proceedings -- where a compelling public interest is involved - - and civil damages proceedings. See Nixon v. Fitzgerald, 457 U.S. at 754 & n.37; United States v. Nixon, 418 U.S. 683, 712 n.19 (1974). The fact that Presidents on occasion appear as witnesses in criminal proceedings, therefore, does not support the conclusion that a President is required to participate in a private civil damages action in any capacity -- and certainly not as a defendant.
3.a. The brief in opposition attempts to create the impression that the President seeks to be held absolutely immune from liability for actions he took while he was not President. The President seeks no such thing, and respondent's elaborate arguments against that proposition (Br. in Op. i, 9, 15-18, 20- 22) are simply a determined effort to confuse the issue. Rather, throughout this case, the President has asserted that the responsibilities of the Presidency warrant a stay of litigation until he leaves office. He does not seek to extinguish the respondent's rights to pursue her claims, does not seek to evade accountability, and remains subject to the risk of damages.
And while respondent, like the panel majority, engages in overblown rhetoric to the effect that the President is seeking to place himself "above the law" and that the relief he seeks is "unprecedented," even respondent is forced to concede the validity of the underlying principle for which we contend. She acknowledges that the President is not like any other litigant, and that the courts must show "defense" and must accommodate the President's unique responsibilities. Br. in Op. 12-14.
b. Respondent and the panel majority suggest that Fitzgerald affirmative rejected the President's position here. Pet. App. 8- 9, 10-11; Br. in Op., at 16, 23. This suggestion is, to say the least, odd: in Fitzgerald, even the plaintiff, although seeking to hold then-former President Nixon liable in damages, conceded in his brief that litigation against a sitting President could be stayed  -- reflecting the universal understanding, until this case, that a President cannot be subjected to personal damages litigation during his term of office. The issue in Fitzgerald was whether a President enjoys absolute immunity from liability for all his official acts. The Court decided that the President, alone among all public officials, is entitled to this exceptional protection. That conclusion is fully consistent with our view that a President who is sued for acts outside the scope of his office is entitled to the much more limited relief of temporary insulation from litigation. Indeed, as we showed in the petition, a crucial aspect of the Court's reasoning in Fitzgerald was that personal damages litigation can divert a President from his official duties. 
Respondent (Br. in Op. 9, 16) makes much of Chief Justice Burger's statement in Fitzgerald that "[t]he doctrine of absolute immunity does not extend beyond [official] actions," -- a statement with which we of course agree. 457 U.S. at 761 n.4. (Burger, C.J., concurring); see also id. at 759. Respondent does not mention that Chief Justice Burger also said that "[t]he need to defend damages suits would have the serious effect of diverting the attention of a President from his executive duties," and cautioned that "litigation processes . . . can be and are used as mechanisms of extortion." Id. at 763.
4. Respondent asserts (Br. in Op. 19-20) that President Jefferson "lost" his argument that subjecting Presidents to a Court's jurisdiction undermines the separation of powers. In fact, our history -- beginning at least with President Jefferson and extending through the Burr cases, the Fitzgerald case, and United States v. Nixon and its progeny -- teaches that subjecting a sitting President personally to the process of the courts is something that should be done only in cases of imperative need, and then only to the most limited extent possible. See Fitzgerald, 457 U.S. at 753-54. 
No court has ever, until now, required a sitting President to defend a civil damages action directed at him personally. In fact, no court has ever required a President to testify in a civil case as a witness. What respondent seeks -- allowing a sitting President to be sued for damages in his personal capacity -- would be an intrusion far beyond anything that has ever before been allowed, or even contemplated. To permit such an intrusion, without even so much as this Court's review, is utterly unwarranted.
For these reasons and the reasons stated in the petition, the petition for a write of certiorari should be granted.
 The Court in Fitzgerald attributed this to the fact that Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which permitted damages actions against federal officials for violation of the Constitution, was of relatively recent vintage. But common law tort actions had long been available against federal officials, as justice Harlan noted in Bivens. See 403 U.S. at 400 n.3, 409 (Harlan, J. concurring). The more likely explanation for the absence of suits against the President is that -- as we showed in the petition -- it was universally understood that the President could not be sued for damages while in office. See Fitzgerald, 457 U.S. at 758.
 See, e.g., United States v. Poindexter, 732 F.Supp. 142, 148- 50, 155-59 (D.D.C. 1990) (court limited defendant to written interrogatories and videotaped deposition, and reviewed questions to be asked in advance); United States v. McDougal, No. LR-CR-95- 173 (E.D. Ark., Mar. 29, 1996) (permitting presidential testimony only by way of videotaped deposition conducted at the White House, supervised by the trial court via videoconferencing to avoid abuses, after which only directly relevant portions would be shown at trial).
 See, e.g., Poindexter, 732 F.Supp. at 147 (President would be compelled to provide testimony for criminal trial only if court is "satisfied that his testimony would be material as tested by a meticulous standard, as well as being necessary in the sense of being a more logical and more persuasive source of evidence than alternatives that might be suggested") (footnote omitted); United States v. North, 713 F. Supp. 1448, 1449 (D.D.C. 1989) (compelled testimony of former President in a criminal proceeding must be justified by a "sufficient showing . . . that the . . . President's testimony is essential to assure the defendant a fair trial"), aff'd, 910 F.2d 843 (D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991).
 Brief for Respondent A. Ernest Fitzgerald, Nos. 78-1783 and 80-945 (Sup. Ct. filed Oct. 29, 1981) at 28.
 The respondent suggests that the President is entitled to the relief sought here only if provided for in an act of Congress. Br. in Op. 11. We disagree. The relief sought here is required by the singular nature of the President's constitutional duties, and by principles of separation of powers. Fitzgerald, 457 U.S. at 749. The President does not rely on, or claim any relief under, the Solders' and Sailors' Civil Relief Act of 1940 (50 U.S.C. Sections 501-525 (1988 & Supp. Y 1993)), or any other legislation.
 In the face of this Court's demonstration in Fitzgerald that the Framers contemplated that Presidents would not be subject to suits while in office (457 U.S. at 751 n.31), respondent cites four cases. Br. in Op. 20. Three involve the entirely different question of whether a President can be required to be a witness in a criminal proceeding. See supra, p. 6-7. The fourth, National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1973) (en banc) ("NTEU"), is inapposite and of questionable vitality, and in any event supports our position. In NTEU, the President was sued for injunctive relief in his official capacity, and was not required to defend the litigation personally. The court of appeals stated that it had the authority to mandamus President Nixon to perform a ministerial duty, but refrained from exercising that authority "in order to show the utmost respect to the office . . . and to avoid, if at all possible . . . any clash between the judicial and executive branches." the court proceeded by way of declaratory judgment instead. 492 F.2d at 616. Contrary to respondent's suggestion, NTEU demonstrates that courts go to great lengths to avoid entangling the President in their jurisdiction. Moreover, even the viability of the opinion expressed in NTEU -- that a President could be enjoined -- is in doubt, in view of the more recent discussion of that issue in Franklin v. Massachusetts, 505 U.S. 788 (1992). See id., 505 U.S. at 802-03 (plurality opinion of O'Connor, J.) (citing Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 498-99 (1867)); id. at 826 (Scalia, J., concurring).
Robert S. Bennett, Counsel of Record
Carl S. Rauh
Amy R. Sabrin
Stephen P. Vaughn
SKADDEN, ARPS, SLATE,MEAGHER & FLOM
1440 New York Avenue, N.W.
Washington, D.C. 20005
David A. Strause
Geoffrey R. Stone
1111 East 60th Street
Chicago, Illinois 60637
Attorneys for the Petitioner
President William Jefferson Clinton
May 28, 1996
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