May 28, 1996
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1995
WILLIAM JEFFERSON CLINTON,
PAULA CORBIN JONES,
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.
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
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
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
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
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
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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