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The Final Slap to the Imperial Presidency
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Monday, the Supreme Court unanimously declared that Bill Clinton’s position as president of the United States should not protect him from the sexual-misconduct lawsuit filed against him three years ago by Paula Corbin Jones. The principle affirmed by the court–that the president is not above the law–sounds almost platitudinously familiar, and polls say a solid 60% of the populace agree with the decision. But there has been a lot of surprised buzzing among commentators, and for good reason: Underneath the legal language of the opinion, you can hear the inexorable crumbling of presidential government as we have known it for 50 years.
True, the opinion offered solemn words about how the courts must treat the presidency with utmost deference and respect. These words are loopholes that the trial judge in this case could use, if she were determined, to give Clinton continued special treatment. But if she did so, she would be countervening the court’s clear message, which is that being president does not make Clinton very special or precious to the republic, at least not special or precious enough to be excused from the ordinary aggravations of the legal process.
As the week’s news reminded us, Jones alleges in her complaint that when she was an Arkansas state employee and Clinton the state’s governor, he got a state trooper to bring her to a gubernatorial hotel suite, where the aforementioned governor propositioned and exposed himself to her. After she refused his request for sex, she says, her supervisors retaliated against her.
The trial judge ruled that pretrial interviews could go forward, but the trial itself should wait until after Clinton leaves the presidency. Though this postponement was overturned by the Supreme Court, the trial judge’s deference to the office of the presidency was by no means outlandish. Indeed, it fit right in with a view of the presidency that has been common among scholars and opinion makers since World War II.
This view begins with the fact that while the legislative and judicial branches of the federal government are each composed of many people, the executive branch consists at its core of exactly one individual–the president. The founders deliberately designed it that way in order to maximize accountability.
But the identity between the august, singular office of the presidency and the individual, fallible human being who holds it has consequences. When the president is out of commission, so, too, is the entire executive branch–constitutionally speaking.
Before the Supreme Court, the president’s lawyers argued the logical conclusion of this line of thinking: The law must cut the flesh-and-blood president some special slack in order to keep the presidential office functioning. A president in office must enjoy a constitutionally based immunity from civil lawsuits, even those that arise from his private conduct.
Justice John Paul Stevens, writing for the court, not only disagreed with this conclusion; he expressed a fundamentally different view of the presidency.
Stevens emphatically distinguished between the presidential office and the individual occupying it. Presidents had to be immune from lawsuits over their official actions in the White House, because otherwise a president’s personal fear of being sued might distort his official decisions. But there is no such need, Stevens said, when it comes to a president’s private actions.
The same distinction between the office and the individual meant that the separation-of-powers doctrine, though it protected the presidency against interference by Congress and the judiciary, did not thereby immunize the individual who–as the opinion puts it–”happens to be president.” “We suspect,” the opinion comments archly, “that even in our modern era there remains some truth to Chief Justice Marshall’s suggestion that the duties of the presidency are not entirely ‘unremitting.’ ” This remark conjures up presidential golf games, fund-raisers and other discretionary activities, emphasizing that not everything a president does is automatically presidential in the constitutional sense.
Consistent with this basic position, the court rejected the notion that a president without civil immunity would be endlessly tied up by frivolous lawsuits. If it happens, says the opinion, Congress can always pass remedial legislation later on. The danger is simply not big enough to outweigh the presumption that each ordinary citizen, including Jones, is entitled to his or her timely day in court.
The court’s analysis of the presidency in Clinton v. Jones would have to be characterized as briskly dismissive, at least when compared with the veneration of previous years. Note that it was not an eruption from a conservative justice who could have been dismissed as a Clinton hater. Note also that the opinion is unanimous, crossing all the court’s deep and diverse ideological divides.
So here is what happened to the Jones case at the Supreme Court: The president’s advocates presented the nine justices with the picture of a president spending large, unpredictable amounts of time on activities important enough to the nation so that he should not be distracted by the temporal and emotional demands of a lawsuit–and the justices did not find the image believable, let alone compelling. The president’s advocates explained how national-security needs might be threatened by the demands of litigation–and the justices shrugged their collective shoulders, deciding the country could afford to wait and cross that bridge if and when we come to it.
The importance of this unanimous judgment goes beyond legal reasoning. It points to a sea change in the standing of the presidency among U.S. political institutions.
Part of the reason for the shift is clearly historical. For some 30 years, public discourse has eroded respect for politics and government. More recently, we have seen that post-Cold War security threats, real though they are, simply do not have a Soviet-style capacity to put the fear of leaderlessness into us. Another part of the reason, it must be said, is the perceived character of this particular president. It is hard to imagine a modern occupant of the office less suited to the job of appearing to transcend his purely human stature.
Jones’ case may actually get to trial; if it does, it will be a humiliation to the president. But it will only add pain to a loss that has already taken place. The presidency, for better or worse, has virtually ceased to be a focus of national aspiration and identity or a source of national purpose. Probably for worse.
Suzanne Garment a contributing editor to Opinion, is a resident scholar at the American Enterprise Institute. She is the author of Scandal: The Culture of Mistrust in American Politics
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