PREMIUM LEGAL RESOURCES
ASK A LAWYER
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
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONER
INTEREST OF THE UNITED STATES
This is a private civil action for damages against the President of the
United States based on alleged pre-Presidential conduct. The decision
below compels the President to participate in discovery and defend
himself at trial. The United States has a fundamental interest in
protecting the Office of the President and the powers and duties vested
in that Office by Article II of the Constitution. The United States is
therefore directly interested in whether, and under what circumstances,
a sitting President may be compelled to take part in judicial
1. In May 1994, respondent Paula Corbin Jones filed a complaint in the
United States District Court for the Eastern District of Arkansas. The
complaint named as defendants petitioner William Jefferson Clinton, the
President of the United States and former Governor of Arkansas, and
Danny Ferguson, an Arkansas state trooper. Respondent alleged that then-
Governor Clinton had sexually harassed her in May 1991, and that she was
thereafter subjected to retaliation and libel relating to the episode.
Respondent asserted claims under 42 U.S.C. 1983 and 1985, and under the
common law of Arkansas. She sought $75,000 in compensatory damages and
$100,000 in punitive damages for each claim.
In August 1994, the President filed a motion to dismiss the suit without
prejudice or, in the alternative, to stay the suit. The President
contended that he was immune during his term of office from private
civil litigation arising out of pre- Presidential conduct. The President
asserted that respondent should not be allowed to proceed with her suit
while he remained in office, but should be permitted to reinstate her
The United States filed a statement of interest pursuant to 28 U.S.C.
517. The United States argued that, except in unusual circumstances, the
President should not be compelled to defend himself during his term of
office against private suits based on pre-Presidential conduct. The
United States further submitted that this case presents no unusual
circumstances that would warrant allowing the litigation to proceed
during the President's term. The United States recommended that the
court stay the proceedings, rather than dismiss the suit, in order to
avoid any possible statute of limitations problems.
In December 1994, the district court entered an order denying the
President's motion to dismiss but partially granting the President's
alternative motion for a stay. Pet. App. 54-77. The district court
sought guidance from Nixon v. Fitzgerald, 457 U.S. 731 (1982), in which
this Court recognized absolute Presidential immunity for acts "within
the 'outer perimeter' of [the President's] official responsibility." Id.
at 756. Relying on the Court's reasoning in Fitzgerald, the district
court concluded that the President is entitled to "temporary or limited
immunity from trial" during his term of office for claims based on his
unofficial acts. Pet. App. 70. The district court also based the stay on
its equitable power over its docket and on Rule 40 of the Federal Rules
of Civil Procedure. Id. at 71. The court held, however, that discovery
could proceed "as to all persons including the President himself." Ibid.
2. The President and respondent filed cross-appeals from the district
court's order. On January 9, 1996, a divided panel of the Eighth Circuit
affirmed the denial of the President's motion to dismiss, reversed the
grant of a partial stay, and remanded with instructions to allow the
suit to proceed. Pet. App. 1-31.
The majority framed the issue as whether the President "is entitled to
immunity from civil liability for his unofficial acts." Pet. App. 3. The
court held that the President "is entitled to immunity, if at all, only
because the Constitution ordains it." Id. at 16. The majority then
determined that the Constitution does not grant the President immunity
from private suits based on the President's unofficial acts. Ibid. It
reasoned that the President's immunity under Fitzgerald for acts within
the "outer perimeter" of his official duties represents the full extent
of Presidential immunity under the Constitution. Id. at 8-9. The court
acknowledged that the district court had also predicated its stay on its
"broad discretion in matters concerning its own docket," but held that
it was an abuse of discretion for the district court to grant the stay
in the absence of a constitutionally mandated immunity. Id. at 13 n.9.
Judge Ross dissented, taking the position that private actions for
damages against a sitting President based on the President's unofficial
acts should be stayed until the completion of the President's term
"unless exigent circumstances can be shown." Id. at 25.
The decision below prohibits trial courts from staying private civil
suits against the President of the United States during the President's
term of office. In the view of the United States, the decision is
fundamentally mistaken. When a private litigant invokes judicial
processes to pursue claims against a sitting President, the court
ordinarily should exercise its power to postpone the litigation until
the President leaves office. By compelling Presidents to defend
themselves against personal liability during their term of office, the
Eighth Circuit's holding creates serious risks for the institution of
the Presidency. Given the practical importance of this issue to the
responsibilities of the Presidency, and given the shortcomings in the
Eighth Circuit's reasoning, review by this Court is warranted.
1. a. At issue here is when, not whether, the President may be required
to defend himself against claims based on his unofficial acts.
Resolution of that issue implicates the basic and well-established
judicial power to stay civil proceedings. Over a half-century ago, in
Landis v. North American Co., 299 U.S. 248, 254 (1936), this Court held
that "the power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for
litigants." The Court recognized in Landis that "[o]ccasions may arise
when it would be a 'scandal to the administration of justice' * * * if
power to coordinate the business of the court efficiently and sensibly
[by staying proceedings] was lacking altogether." Id. at 255. In the
view of the United States, the established authority of trial courts to
stay proceedings should be exercised, except in extraordinary
circumstances, to defer private suits against a sitting President during
his term of office.
Whenever a litigant seeks to invoke the processes of the courts against
the President, "the President's constitutional responsibilities and
status [are] factors counseling judicial deference and restraint.')
Fitzqerald, 457 U.S. at 753. To be sure, the separation-of-powers
doctrine "does not bar every exercise of jurisdiction over the President
of the United States. But * * * a court, before exercising jurisdiction,
must balance the constitutional weight of the interest to be served
against the dangers of intrusion on the authority and functions of the
Executive Branch." Id. at 753-754. When the President is forced to
defend himself in his personal capacity during his term of office, "the
dangers of intrusion on the authority and functions of the Executive
Branch" are both real and obvious. The substantial burdens borne by
individual defendants in civil litigation, especially litigation seeking
to impose personal financial liability, require little elaboration. When
those burdens are imposed on the President of the United States, they
can be expected to impinge on the President's discharge of his
constitutional duties, by forcing him to divert his energy and attention
to the task of protecting himself against personal liability. As a
result, they implicate interests that are both public and constitutional
As this Court noted in Fitzgerald, "[t]he President occupies a unique
position in the constitutional scheme," one that "distinguishes him from
other executive officials." 457 U.S. at 749, 750. The President is the
sole repository of the "executive Power" created by Article II of the
Constitution. Id. at 749-750. Under Article II, the President is
"entrusted with supervisory and policy responsibilities of utmost
discretion and sensitivity," including "the enforcement of federal law *
* *; the conduct of foreign affairs * * *; and the management of the
Executive Branch." Id. at 750.
Both constitutionally and practically speaking, the demands of the
President's office are unceasing. See Amar ~ Katyal, Executive
Privileges and Immunities: The Nixon and Clinton Cases, 108 Harv. L.
Rev. 701, 713 (1995). The President must attend to his constitutional
duties continuously throughout his tenure, in contrast to the Congress,
which is required to assemble only "once in every Year," Art. I, 4,
and which may adjourn on a regular basis, Art. I, 5. As a practical
matter, the issues of domestic and foreign policy that call for the
President's attention fully occupy, if they do not indeed outstrip, the
time available for the President to respond. The adoption of the Twenty-
Fifth Amendment, with its elaborate machinery for carrying out the
President's functions when he "is unable to discharge the powers and
duties of his office," testifies to the unique nature of the Presidency
and the incessant demands on its occupants.
Accordingly, a sitting President can defend himself against an action
for damages, and assume all of the burdens that such an undertaking
entails, only by diverting his time and attention from the demands of
his office. That result would disserve the substantial public interest
in the President's unhindered execution of his duties. It would also
impair the integrity of the role assigned to the President by Article II
of the Constitution.
On several occasions, sitting Presidents have given testimony as
witnesses in federal criminal cases by means of depositions and
interrogatories, while declining to attend, or being excused from
attending, court to testify in person. See generally Rotunda, Presidents
and Ex-Presidents As Witnesses: A Brief Historical Footnote, 1975 U.
Ill. L. Forum 1; United States v. McDougal, No. LR-CR-95-173 (E.D. Ark.
Mar. 20, 1996) (order providing for President's videotaped deposition
testimony in Whitewater prosecution). We know of no instance, however,
in which a sitting President has been compelled to furnish evidence in
connection with a civil proceeding. In any event, the burdens of
participating in a civil suit as a defendant are far different, both in
degree and in kind, from the burdens imposed on a witness, and the risk
of wrongfully motivated efforts to entangle the President in those
burdens is far greater. As a result, the historical examples of sitting
Presidents' giving evidence as witnesses in criminal cases do not
suggest that the President may appropriately be forced to defend himself
against personal liability during his term of office.
b. This Court's decision in Fitzgerald casts light on the constitutional
implications of subjecting the President to the burdens of civil
litigation. As noted above, the Court held in Fitzgerald that the
President is entitled to absolute immunity from claims for damages "for
acts within the 'outer perimeter' of his official responsibility." 457
U.S. at 756. The Court characterized that immunity from liability as "a
functionally mandated incident of the President's unique office, rooted
in the constitutional tradition of the separation of powers and
supported by our history." Id. at 749.
In according the President absolute immunity, the Court placed primary
reliance on the prospect that the President's discharge of his
constitutional powers and duties would-be impaired if he were
subject to suits for damages based on his official conduct. 457 U.S. at
751-754. To expose the President to suits for damages based on his
official actions, the Court reasoned, could deprive him of ''the maximum
ability to deal fearlessly and impartially with the duties of his
office." Id. at 752 (internal quotation marks omitted). The Court
observed that, "[b]ecause 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." Id. at
751. In his concurring opinion, Chief Justice Burger also noted the
possibility that private suits for damages against a President could be
used for purposes of harassment and extortion. Id. at 762, 763 (Burger,
When the President is sued for actions wholly unrelated to his official
responsibilities, Fitzgerald's concern for ensuring "fearless and
impartial" Presidential decisionmaking is not directly implicated. The
more general concerns underlying this Court's holding, however, apply
with equal force. Fitzgerald recognizes that "[t]he President occupies a
unique position in the constitutional scheme," 457 U.S. at 749; that the
President should not be diverted from attending to the national welfare
by "concern with private lawsuits," i. at 751; and that the public
interest in the President's unimpaired attention to his official
responsibilities must take precedence over a private litigant's desire
to obtain redress for legal wrongs, i. at 754 n.37. As explained above,
the President would be faced with a "diversion of his energies by
concern with private lawsuits," id. at 751, if he were compelled to
defend himself against a private damage action during his term in
office. That diversion would "raise unique risks to the effective
functioning of government." Ibid. Fitzgerald indicates that the judicial
system should not lend itself to such risks.
c. When a sitting President is sued for conduct unrelated to his
official actions, the demands of the Presidency do not require absolute
immunity from liability. Rather, those demands may be accommodated by
the more limited alternative of postponing the litigation until the
President leaves office. Deferring litigation until the expiration of
the President's term is sufficient to forestall the "intrusion on the
authority and functions of the Executive Branch," Fitzgerald, 457 U.S.
at 754, that would result if the President were required to divert his
attention to the task of defending himself against personal liability.
At the same time, deferring the suit preserves the plaintiff's right to
seek relief for a meritorious claim. It affects only when, not whether,
the President must answer the allegations; it merely delays, rather than
defeats, the vindication of the plaintiff's private legal interests. It
is thus far less burdensome for plaintiffs than the immunity recognized
The rule we suggest is not an absolute one. In the exceptional case
where a plaintiff will suffer irreparable injury without immediate
relief, and where prompt adjudication will not significantly impair the
President's ability to attend to the duties of his office, a stay need
not issue. Absent such a showing, however, the public and constitutional
interests in the President's undivided attention to his office demand a
d. The circumstances of this case do not support a departure from the
general rule outlined above. To the contrary, this case well illustrates
the potential burdens that private litigation would impose on the
President's discharge of his official duties.
The President is the principal defendant in this case, and the suit
seeks to subject him to hundreds of thousands of dollars in personal
liability. Respondent's claims focus overwhelmingly on his alleged
actions, and her complaint acknowledges that the facts surrounding those
claims are hotly contested. The President's testimony presumably would
be central to the resolution of the underlying factual controversy. The
case therefore threatens to place highly burdensome demands on his time
and energy. If the President were required to defend himself against
respondent's claims during his term of office, he would necessarily be
forced to divert his attention from the demands of the Presidency.
In contrast, immediate resolution of respondent's claims is unnecessary
to protect her interests. The complaint does not disclose any need for
immediate relief. Respondent seeks damages for past actions, not relief
against ongoing or future harms. Delaying an award of damages until
after the President's term of office (if any award were determined to be
due) would not appreciably affect the value of that relief. Moreover, as
the district court pointed out, respondent waited three years from the
time of the President's alleged actions before filing suit. There
accordingly is no reason to believe that time is now of the essence. Nor
is there any reason to believe that a stay will, in contrast, jeopardize
respondent's ability to marshal evidence on her behalf. In sum, the
specific circumstances of this case reinforce the general rationale for
postponing civil suits against sitting Presidents.
2. The Eighth Circuit rejected this analysis, holding instead that the
district court had committed reversible error in granting the President
even a partial stay of proceedings during his term of office. The Eighth
Circuit's reasoning is seriously flawed.
a. The court of appeals concluded that "the Constitution does not confer
upon an incumbent President any immunity from civil actions that arise
from his unofficial acts." Pet. App. 16. That conclusion rests on a
reading of constitutional history and precedent that is, at best, highly
debatable with respect to the conduct of litigation against the
President during his term of office. In particular, the Eighth Circuit
failed to give sufficient weight to the constitutional concerns
identified by this Court in Fitzgerald. See pages 9-11, supra; see also
Pet. App. 2531 (Ross, J., dissenting).
In any event' even if the Eighth Circuit were correct that the
Constitution ex proprio vigore does not render the President "immune"
from civil actions during his term of office, that conclusion would not
resolve the case. The question remains whether the constitutional and
practical demands of the Presidency should lead a court to postpone such
litigation until the President leaves office. The court of appeals
acknowledged that a trial court has "broad discretion in matters
concerning its own docket," but nonetheless held that the district court
had committed reversible error by exercising that discretion in favor of
a partial stay. Pet. App. 13 n.9. The court reasoned that a sitting
President is entitled to immunity from civil suits, "if at all, only
because the Constitution ordains it." Id. at 16. Because it believed
that the President is not "constitutionally entitled" to "temporary
immunity," the court of appeals concluded that it was an abuse of
discretion for the district court to grant a stay on equitable grounds.
Id. at 13 n.9.
That line of reasoning is fundamentally misconceived. To begin with,
official immunity is not confined, as the Eighth Circuit thought, to
cases in which "the Constitution ordains it." See, e.g, Butz v.
Economou, 438 U.S. 478, 497 (1978) ("the doctrine of official immunity
from 1983 liability * * * [is] not constitutionally grounded")
(emphasis added); Pierson v. Ray, 386 U.S. 547 (1967); Fitzgerald, 457
U.S. at 747 ("Our decisions concerning the immunity of government
officials from civil damages liability have been guided by the
Constitution, federal statutes, and history, '' and "[t]his Court
necessarily also has weighed concerns of public policy, especially as
illuminated by our history and the structure of our government."). A
fortiori, no constitutional mandate is required for the more limited
kind of "immunity" at issue in this case, which defers rather than
denies the plaintiff's opportunity to pursue her claims in court. A
court enjoys inherent authority to control the progress of cases on its
docket, and it properly may exercise that authority to accommodate
public and private interests that would be unfairly prejudiced by
immediate litigation, regardless of whether it is constitutionally
required to do so.
b. The court of appeals concluded that sitting Presidents can be
shielded adequately from the burdens of civil litigation, without a
stay, through "judicial case management." Pet. App. 13. That conclusion
is, in our view, unduly optimistic. As a defendant, the President has a
direct financial stake in the litigation and an obligation to marshal
his defenses. If the litigation is allowed to proceed during his term of
office, the President will inevitably be required to devote significant
energy, expense, and attention to it, even if the court regulates the
timing and extent of discovery and Presidential testimony. The Eighth
Circuit's own conception of the future district court proceedings, in
which the President must resort to repeated "motions for rescheduling,
additional time, or continuances," id. at 16, belies the notion that
"case management" can meaningfully protect the President from the need
to attend to outcome of the litigation.
c. The Eighth Circuit's decision is also problematic in its analysis of
the other interests involved. The majority and concurring opinions
suggest that delaying litigation until a sitting President leaves office
would infringe on a constitutional right of the plaintiff to have access
to the courts. Pet. App. 10, 17, 20-21. The causes of action asserted
here, however, are based on statutes (42 U.S.C. 1983 and 1985) or state
common law, and therefore may be subjected to limitations and procedures
designed to protect countervailing public interests. Moreover, a stay
affects only the timing of the litigation, not whether the plaintiff
receives her day in court. As a result, the plaintiff's asserted
constitutional interest is preserved. In this regard, we note that while
the Bill of Rights guarantees the right to a speedy trial in criminal
cases (U.S. Const., Amend. VI), it lacks a similar guarantee for civil
d. The court of appeals' decision is sharply at odds with the
surrounding legal landscape. For example, the available evidence
indicates that the Framers did not contemplate the possibility that
criminal prosecutions could be brought against a sitting President.
The court of appeals' decision thus gives greater priority to private
civil actions than criminal law enforcement proceedings would receive`.
Yet as this Court noted in Fitzgerald, "there is a lesser public
interest in actions for civil damages than * * * in criminal
prosecutions." 457 U.S. at 754 n.37.
In other contexts as well, it has been recognized that the public
interest may require a stay of civil litigation. For example, a
postponement or Stay may be appropriate during the pendency of
administrative proceedings (see, e.g., Oscar Mayer & Co. v. Evans, 441
U.S. 750, 765 n.13 (1979); Ricci v. Chicago Mercantile Exchange, 409
U.S. 289, 306-307 (1973)), criminal proceedings (see, e.g., 21 U.S.C.
881(i); Koester v. American Republic Invs., 11 F.3d 818, 823 (8th Cir.
1993); United States v. Mellon Bank, N.A., 545 F.2d 869 (3rd Cir. 1976);
2 Beale & Bryson, Grand Jury Law and Practice 8:07 (1986)),
arbitration proceedings (Moses H. Cone Hospital v. Mercury Constr.
Corp., 460 U.S. 1, 20 n.23 (1983)), bankruptcy proceedings (11 U.S.C.
362; Hill v. Harding, 107 U.S. 631, 634 (1882); cf. Coit Independence
Joint Venture v. FSLIC, 489 U.SL 561, 585 (1989) (FSLIC receivership)),
or state court proceedings (Heck v. Humphrey, 114 S. Ct. 2364, 2373 n.8
(1994); Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83 (1975);
England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411
(1964)). Similarly, the Soldiers' and Sailors' Civil Relief Act, 50
U.S.C. App. 501 et seq., provides for federal and state courts to grant
stays in suits involving persons in military service in specified
circumstances, 50 U.S.C. App. 521. See, e.c., Semler v. Oertwig, 12
N.W.2d 265, 270 (Iowa 1943); Coburn v. Coburn, 412 So.2d 947, 949 (Flat
Dist. Ct. App. 1982). The postponement of litigation under any of
these doctrines or statutory schemes may be lengthy, sometimes as long
or longer than a President's term in office. Congress and the courts
have thought this result justified, however, because of the weight of
the countervailing public policies supporting a stay.
The constitutional demands of the Office of President require the full
measure of the President's attention and energy so long as he serves. We
submit that the need to avoid substantial distractions from the
President's constitutional duties is compelling, and is clearly of
sufficient magnitude to require a stay of civil litigation against the
President, absent unusual circumstances not present here. Due regard for
the institution of the Presidency under our constitutional structure
calls for the Court to resolve this issue now.
The petition for a writ of certiorari should be granted.
1 The United States has participated in other cases that have presented
related issues of Presidential participation in judicial proceedings.
The United States participated as amicus curiae in Nixon v. Fitzgerald,
457 U.S. 731 (1982), which involved the President's immunity from civil
actions for damages based on the President's conduct in office.
Similarly, in In Re Proceedings of the Grand Jury Impaneled December 5,
1972, Civil 73-965 (D. Md.), which involved the amenability of a sitting
Vice President to a criminal indictment and trial, the United States
also addressed the amenability of a sitting President to prosecution.
In addition, the United States participated as amicus curiae in United
States v. Poindexter,' 732 F. Supp. 142 (D.D.C. 1990), regarding the
amenability of former President Reagan to a criminal subpoena relating
to the Iran-Contra affair, and in United States v. McDougal, No. LR-CR-
95-173 (E.D. Ark.), regarding the subpoena issued to President Clinton.
The United States has participated as well in federal and state courts
in cases involving the immunity of foreign heads of state. See, e.g.,
LaFontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994); Anonymous v.
Anonymous, 581 N.Y.S.2d 776 (N.Y. App. Div. 1992).
2 A separate immunity issue exists with respect to one of respondent
Jones's claims, a libel claim that concerns alleged statements made on
the President's behalf after he took office. See Pet. App. 9 n.7.
Neither the district court nor the court of appeals has addressed
whether the statements at issue come within the scope of the President's
immunity under Nixon v. Fitzgerald, 457 U.S. 731 (1982).
3 The production of evidence at a criminal trial has constitutional
dimensions, since the Sixth Amendment guarantees a criminal defendant
the right "to be confronted with the witnesses against him" and ~"to
have compulsory process for obtaining witnesses in his favor." See
United States v. Nixon, 418 U.S. 683, 711 (1974). A plaintiff in a civil
action can assert no comparable constitutional entitlement. Cf.
Fitzgerald, 457 U.S. at 754 n.37 ("there is a lesser public interest in
actions for civil damages than, for example, in criminal prosecutions").
4 The Court in Fitzgerald discussed in some detail historical precedents
regarding the susceptibility of sitting Presidents to judicial process.
See 457 U.S. at 751-752 n.31. The Court noted, inter alia, that such
early Americans as John Adams, Oliver Elleworth, Joseph Story, and
Thomas Jefferson believed the President not to be subject to judicial
process. Id. at 751 n.31. The Court concluded that "[t]he best
historical evidence clearly supports'' a rule of absolute immunity for a
President's official actions. Id. at 752 n.31.
5 Somewhat different concerns might be raised by private actions for
equitable relief, such as suits to enjoin ongoing unlawful conduct
unrelated to the President's official duties. But when a plaintiff seeks
only damages for alleged past misconduct, delay is unlikely to vitiate
the relief. And there is no reason to expect, at least as a general
matter, that postponing litigation will defeat a plaintiff's eventual
ability to marshal evidence in support of his or her claims. If the
circumstances of a particular case suggest an unusual risk that specific
evidence will be lost for example, if the case will require the
testimony of an extremely ill witness -- arrangements can be made to
preserve that evidence without allowing a more general commencement or
resumption of the litigation. Cf. Fed. R. Civ. P. 27 (perpetuation of
testimony). Postponing adjudication of private damage actions will
therefore rarely defeat a plaintiff's ability ultimately to obtain
6 Where the public and constitutional interest in the President's
unimpaired attention to his duties conflicts with the purely private
interest of a plaintiff in obtaining immediate relief, the private
interest must yield. Cf. Fitza~erald, 457 U.S. at 754 n.37 (President
has absolute immunity for claims relating to official actions even
though "absolute immunity may impose a regrettable cost on individuals
whose rights have been violated"). As a result, even where a plaintiff
can show that his or her interests would be prejudiced, a stay should
issue unless the court further determines that allowing the litigation
to proceed would not impair the President's attention to the demands of
7 Respondent characterizes this case as "a very simple dispute,"
involving "only a handful of potentially important witnesses." Br. in
Opp. 10. Given the nature of respondent's claims, the principal
witnesses presumably are President Clinton and respondent herself. There
is no reason to expect that either party will be unable to give
testimony after the President leaves office.
8 The concurring opinion is similarly mistaken in suggesting (Pet. App.
17) that a stay of the litigation would infringe on the plaintiff's
Seventh Amendment right to trial by jury. The Seventh Amendment concerns
who will decide contested issues of fact, not when such issues will be
decided. See Capital Traction Co. v. Hof, 174 U.S. 1, 23 (1899) (Seventh
Amendment "does not prescribe at what stage of an action a trial by jury
must * * * be had").
9 See, e.g., 2 Farrand, Records of the Federal Convention of 1787 64-
69,' 500 (New Haven 1911); The Federalist No. 69, at 416 (Hamilton) (C.
Rossiter ed. 1961) (the President "would be liable to be impeached,
tried, and, upon conviction * * * removed from office; and would
afterwards be liable to prosecution and punishment in the ordinary
course of law"). In In Re Proceedings of the Grand Jury Impaneled
December 5. 1972, Civil 73-965 (D. Md.), the United States took the
position that while a sitting Vice President is subject to criminal
prosecution, a sitting President is not.
10 Although we understand that the President does not claim relief under
this statute, see Reply Br. 8 n.5, it demonstrates -like the other
examples cited in text -- that reasons of public policy may in certain
circumstances require postponement of civil litigation.
MAY 30, 1996
DREW S. DAYS, III, Solicitor General
EDWIN S. KNEEDLER, Deputy Solicitor General
MALCOLM L. STEWART, Assistant to the Solicitor General
DOUGLAS N. LETTER, SCOTT R. McINTOSH, Attorneys
Department of Justice
Washington, D.C. 20530
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