Supremes to Ms. Jones: You go, Paula!

And you should too, Mr. President -- on a lot of foreign trips. (Or maybe get real sick.)

By Jonathan Broder
Published May 28, 1997 11:00PM (UTC)
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WASHINGTON -- The Supreme Court's 9-0 ruling that Paula Jones can proceed with her sex harassment lawsuit against President Clinton is a major blow to a president already tangled in the Whitewater and Democratic Party fund-raising scandals. Jones' attorneys say they are ready to go to court and may want to depose Clinton.

Jones, a former Arkansas state employee, is seeking $700,000 in damages stemming from an alleged 1991 incident in a Little Rock hotel room, when then-Gov. Clinton allegedly exposed himself and asked Jones to fellate him. Jones' lawsuit says she can identify "distinguishing characteristics" of Clinton's penis. The Supreme Court, which upheld an appeals court decision, emphatically rejected the argument by Clinton's lawyers that a president should be constitutionally protected against private lawsuits while in office. The ruling clears the way for a lower court to take up the case. However, Justice John Paul Stevens, who wrote the opinion, left room for a trial judge to delay the proceedings if they are held to interfere with the president's duties. And Jones' lawyers again hinted that they were open to a settlement -- as long as the president apologizes to Jones.


Closely watching the Clinton-Jones legal drama has been Washington attorney Leonard Garment, who served as White House counsel for President Richard Nixon during the Watergate scandal (he advised Nixon not to destroy the tapes). Garment is the author of "Crazy Rhythm: Richard Nixon and All That Jazz" (Times Books). Salon talked with Garment in Washington soon after the Supreme Court ruling came down.

When the case was argued before the Supreme Court, many legal analysts thought the justices would look favorably on Clinton's arguments. Were you surprised by the ruling?

Yeah. What can I say? My wife called a little while ago and told me the court had decided the Paula Jones case, and before she could tell me what the decision was, I told her I was going to tell her what they decided. I said I thought they would place the burden on Paula Jones to establish that there was a high likelihood of impairment of her rights if they didn't proceed promptly. That they would permit deposition, but they would not permit the trial to go forward in the absence of some substantial evidence of harm from a delay. That shows you how much I know.


What does the ruling mean for the president?

It means no man, not even the president, is above the law, even civil law. That's what's so interesting about this. If someone suffers damages, they are entitled to prompt relief. What will actually happen to President Clinton, I can't speculate.

Justice Stevens left open the door for a trial judge to delay proceedings if they interfere with the president's duties. Couldn't that get Clinton off the hook?


No, because it would have to be very occasion-specific -- in other words, if there's a war or some other crisis. The president's lawyers would have to be very specific about his schedule and why his official duties prevent him making time for the proceedings. They would want to know a lot of details.

As a former counsel to a president who was in deep trouble, what would you advise Clinton and his lawyers to do now?


I think they should get on with it. They're going to look foolish if they try to delay any more. What are they are going to do -- say that the president doesn't have enough time? The truth is all presidents spend a tremendous amount of time doing nothing at all. Is he going to declare war? Perhaps he could develop a terrible illness. That would get him out of it.

OK, but If you were Clinton's lawyer and the president came to you and said, "I still want to delay this till I'm out of office. If I can't delay it constitutionally, what other methods can I use?" what would you tell him?

Well, let's see. The first thing you have to do is stop the proceedings. The first indispensable step would be getting into discussions with the plaintiff's lawyers -- about the how and where and what and when of the proceedings -- and hope that they make it so time-consuming that it becomes too disruptive in light of the president's official duties. They could haul out the president's schedule and show how it conflicts with the plaintiff's demands ...


Even if, as you said, the president often has nothing to do?

Another thing they would have to do is lock lots of things onto his schedule very quickly. Trips around the country, trips abroad -- to give you a basis for saying that the trial proceedings are interfering with the his busy schedule.

Clinton's lawyer, Robert Bennett, didn't sound too panicked after the ruling. He said, "We are going to go forward," and also that he was pleased that the court "basically asked the district court to pay great deference to the unique position of the presidency."


What he and Clinton's other lawyers have to do is try to bait Jones' lawyers into overplaying their hand by offering to cooperate, but then pleading scheduling conflicts to slow the proceedings. Jones' lawyers will complain, and the process will move ahead in fits and starts; from the president's point of view, hopefully there will be more fits than starts.

Like a shadow play.

More like public relations. Put the burden on Jones and her lawyers and lump them together with the Whitewater people and the campaign finance people -- "all these people who are trying to bring down the president." We're talking about delaying and getting the public's sympathy. That's not a bad strategy.

What would you advise if you were representing the plaintiff?


I would be very reasonable. I would say, "He's the president. He has important work to do, so we'll just go along with him wherever he goes and talk with him when he has the time. We'll stay at the Hay Adams (a hotel across the street from the White House). We'll accommodate him wherever he needs to be. We're not going to try to embarrass the president. We don't want a circus. We respect the office of the president. We just want evidence."

Jones' lawyers again said they weren't interested in money but in redeeming her "good name." Gilbert Davis (Jones' chief attorney) said an apology would be "essential to any settlement." What are the chances of an out-of-court settlement?

Not very good.

Why not?


Because of the politics. They talked about that once -- some kind of statement that said she's a fine lady and nobody did anything wrong. Then Bob Bennett got tough on the terms, and then there was a leak in which Jones was referred to as "trailer trash." That wasn't very smart. These people tend to think that everybody is trailer trash, and they treated her that way. It was very shabby. And I think that may have affected the court. I'm sure they looked at a lot of stuff that led them to believe that this is an occasion for this fellow to swallow a few bullets.

Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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