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Clinton May Have Edge in Pressing Immunity Claim

WASHINGTON — Washington.--Documents revealing the Supreme Court's most private discussions indicate that President Clinton and his lawyers are likely to start with a considerable advantage this summer when they try to stop the Paula Corbin Jones sexual harassment lawsuit with a claim of legal immunity.

When the court last faced a claim similar to the one Mr. Clinton's lawyers are preparing to make, demands by some justices for only limited immunity for the president against personal lawsuits were swept away by a majority in favor of much broader protection.

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After an internal struggle stretching over more than two years and badly fracturing the court, that majority prevailed by the narrowest margin -- 5 to 4 -- in June 1982. Now, three of that majority's five members remain on the court, and the last of the four dissenters still there -- Justice Harry A. Blackmun -- is retiring and would not be on hand if the Jones case gets to the court.

The struggle focused on two lawsuits against Richard M. Nixon after he had left the presidency. The first, by a former aide whose telephone had been tapped when the president's other aides thought he was leaking secrets to the press, ended with a frustrated and angry court splitting 4-4. That was, in effect, a non-decision, so the court did not let on in public just how hotly that battle had been waged.

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The second lawsuit, by a Pentagon aide who was fired after blowing the whistle on overspending on a military airplane, finished with the 5-4 decision blocking that lawsuit or any other civil claims in court against Mr. Nixon and insulating all future presidents from a good many legal claims by disgruntled citizens.

That, too, was a bitterly contested case. The full extent of the conflict, and the actual sweep of the immunity concept the court pondered, can now be traced in the files of the two cases in the Library of Congress' public collection of the late Justice Thurgood Marshall's papers.

In coming weeks, President Clinton's legal maneuvering through his private lawyers is to be a sequel, testing just how big the cloak of presidential immunity is going to be.

Back in 1982, however, it was clear that the court majority had a bold, ambitious notion of of immunity in mind. Nothing in the case files suggests that a majority was thinking that by granting a president legal immunity for actions taken in office they were necessarily ruling out immunity to damage lawsuits for unofficial acts or those that occurred before a president took office.

With no specific word or clause in the Constitution suggesting that a president ought to be immune to civil lawsuits, and no prior Supreme Court precedent that was even close on that issue, a core group of justices pressed for immunity so grand in scope that then-Justice Byron R. White complained repeatedly through sharply barbed criticisms at his colleague.

It started early, with Mr. White accusing the majority of embarking on "a most mistaken course that will disserve the law and the country." The immunity those justices were fashioning, he said, amounted to "gross overkill," far more than was needed to protect presidents from nuisance lawsuits.

The echo of that controversy will be heard in a federal court in Little Rock -- and perhaps, ultimately, back in the Supreme Court -- in Paula Corbin Jones' lawsuit seeking $700,000 in damages from Mr. Clinton. The reams of Supreme Court documents that spell out the backstage story of a dozen years ago thus are not likely to remain neglected paper relics of history, but instead will fuel the reopened constitutional feud over presidential immunity.

Ms. Jones, a former Arkansas state employee, in May sued the president personally, charging him with "sexually harassing and assaulting her" in a Little Rock hotel room in May 1991 while he was governor of Arkansas.

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That was, of course, nearly two years before Mr. Clinton became president. A governor would not be likely to get much immunity, if any, for an incident of that kind, so Mr. Clinton's lawyers will have to make do with presidential immunity -- if, as they hope, they can fit that within the reach of the June 1982 ruling in the Nixon case.

The decision of the Supreme Court then clearly gave presidents immunity from legal claims based on what they did while in office. Ms. Jones' attorneys, therefore, are expected to argue that Mr. Clinton cannot use that ruling to shield any actions that allegedly occurred in 1991, before his presidency started.

But as Mr. Clinton's attorneys dig more deeply into the history of presidential immunity, and the basic reasons the court gave for it in 1982, they are becoming persuaded that the 12-year-old ruling was so comprehensive in scope and meaning that only something close to "absolute immunity" satisfies the Constitution and the needs of the presidency.

Their basic intent, therefore, is to end the Jones case, once and for all, at its very beginning -- perhaps a politically damaging gesture, but less so than a full-scale trial would be.

At this point, his attorneys do not appear to favor the idea embraced by some of the president's White House aides, notably White House counsel Lloyd N. Cutler: that the president should seek only a long postponement of the Jones case. That idea, too, has some support among legal policy aides at the Justice Department, who are looking over a range of potential immunity options they might claim if the department gets involved in the Jones lawsuit on behalf of "the institutional presidency." (The Justice Department would not be speaking for Mr. Clinton personally.)

Mr. Clinton's personal lawyers are expected to file their views on the immunity issue in the Little Rock federal courthouse late this month or early next.

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The plea they are now inclined to press -- encompassed in the simple phrase "absolute immunity" -- is a theme that reverberates throughout the 1981 and 1982 memos that led to the Supreme Court's only decision so far on the legal shield around presidents when they are sued personally for civil damages. In the majority at the end then were Justice (now Chief Justice) William H. Rehnquist, Justice Sandra Day O'Connor and Justice John Paul Stevens.

Joining them in the majority were two who have since retired: Chief Justice Warren E. Burger and Justice Lewis F. Powell Jr. Justice Powell, in fact, was the principal architect of the immunity concept.

Justice O'Connor had just joined the court when the majority began to solidify in late 1981, after the first Nixon case had washed out the prior summer on the 4-4 vote: the case filed by former national security aide Morton Halperin, claiming unconstitutional tapping of his home telephone. Justice O'Connor quickly became active in the second case: the $3.5 million lawsuit by former Pentagon whistle-blower A. Ernest Fitzgerald.

Justice Powell, trying to draft an opinion for the apparent majority, told Chief Justice Burger in mid-December 1981: "I am now prepared to defer to the wishes of you, Bill Rehnquist and Sandra, and prepare a draft opinion holding that a president has absolute immunity from damage suit liability" -- for the reasons he had spelled out in his broadest of all of his earlier drafts.

He also noted that Justice Stevens "is willing to decide the Nixon case on absolute immunity." That made five.

All along, it appears, Justice Powell had had at least four justices' support for the idea -- as expressed in one of his early memos, in March 1981 -- that "absolute immunity" to damage lawsuits should be given to a president even for actions "where he has acted to further purely personal interests," not "the national interest."

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Expressed that way, the concept moves beyond the fundamental notion that a president needs immunity only to protect the chief executive's ability to make decisions that are of presidential stature or quality.

Justice White picked up on that early on, saying the idea would shield even a president "when he injures persons by conduct that he knows is violative of the Constitution" or who "deliberately refuses to abide by the law."

Justice Powell never left a doubt of the range of his ambitious idea of immunity: "I would accord a general absolute immunity to the president because the nature of the office of president itself, as established by our Constitution, requires a level of immunity higher than that of any other executive official."

It should be no business of the courts, Justice Powell suggested, to try to divide the president's actions between those that would be cloaked under immunity and those that could be challenged in lawsuits seeking damages from the chief executive personally. The president's "motive" or "purpose," said that memo, is not a fit subject for judicial review.

The fevered rhetoric in the court's written exchanges continued unabated. "If you are sick and tired of this case," Justice Powell once told his colleagues, "imagine the degree of combat fatigue suffered by Byron and me."

The majority appeared to be so focused on the sweep of "absolute immunity" that one of the draft opinions simply left out the phrase "for official actions" in stating the degree of immunity that those justices were promoting. It was inserted in the next draft. The first vote cast was described, in one memo, as a majority for "absolute immunity" -- period.

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Scholars, lawyers and politicians who in recent days have been arguing, on television and elsewhere, that Mr. Clinton has no claim to "absolute immunity" for his prepresidential actions have been focusing on what the Supreme Court said it was deciding in 1982.

Its opinion says that "absolute immunity" was being established for presidential "acts within the outer perimeter of his official responsibility" -- a phrase that it did not define. Those who have been arguing against a claim of immunity for Mr. Clinton have said that, whatever else the court might have been thinking, its actual decision settled only the question of immunity for official actions. For those analysts, it would be a stretch to say that the court meant to allow broader immunity -- especially for actions having nothing to do with presidential service.

The court said that immunity from lawsuits that seek damages was necessary for presidents or former presidents to avoid interfering with the performance of their duties while they are in office, to avert the filing of multitudes of lawsuits by litigious citizens, to liberate presidents from fear of future liability, and to keep the courts from second-guessing presidential actions.

Although the court had ruled in 1974 that Mr. Nixon could be ordered by a court to turn over his White House tape recordings for use in the Watergate criminal prosecution, the court said in its 1982 decision that the tapes decision did not settle the question of presidential immunity to civil lawsuits for damages.

The court hardly paused to notice that it was dealing with a former president, one whose official responsibilities were over and thus whose performance could not possibly have been affected by damages exposure. The justices pored over draft after draft of rulings, all concentrating on the nature of the presidency and the supposed need for legal immunity -- almost as if Mr. Nixon still were in office.

Looking back to the constitutional convention in 1787, Justice Powell said that nothing in those debates "suggests an expectation that the president would be subjected to the distraction of suits by disappointed private citizens.."

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Thomas Jefferson, Mr. Powell added, "also argued that the president was not intended to be subject to judicial process."

It will be to comments of that kind that Mr. Clinton's lawyers now will turn as they ready his legal defense. And, unless they change their present thinking, those attorneys probably will argue that Paula Jones' lawsuit should never go ahead -- even after Mr. Clinton is again a private citizen.

Lyle Denniston covers the Supreme Court and legal issues from the Washington Bureau of The Baltimore Sun.


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