|President Clinton's acquittal by the United States Senate brought closure
of sorts to the Lewinsky matter, but legal commentators continue to revisit the wisdom of
the Supreme Court's decision in the Paula Jones case whereby Jones' civil action was
permitted to proceed in the face of the president's objections. Some critics perpetuate
the mistaken claim that allowance for a civil action against a sitting president threatens
his or her governance.
New York Times columnist Anthony Lewis, for example, wrote that "only
judges with no experience of modern litigation" could fail to know this. Kathleen
Sullivan, newly appointed dean of Stanford Law School, has written that the decision was
These views are inconsistent with genuine litigation experience, however, and the
apprehension such critics have is unwarranted. Defendants in active litigation matters are
rarely, if ever, required to participate on a daily or even weekly basis in their defense,
unless they are representing themselves, and even then such frequent or continuous
involvement is unrealistic. Were the opposite true, the combined attorneys' fees paid
yearly in this country would be even more absurd than they undoubtedly are.
Perhaps these critics are also thinking of the emotional toll paid by defendants in
civil litigation, and certainly there would be widespread agreement that the anxiety over
liability and exposure can be draining for the client. When the action is stayed for some
period, however, the anxiety over liability and exposure continues unabated, unless the
defendant has an admirable ability for compartmentalization; and if he has such a trait,
then it can as well serve him without a stay. And if they instead or in addition mean to
say that the publicity attendant to a plaintiff's allegations creates the distraction,
then the relief they support - a stay of the action during the president's tenure - draws
them onto First Amendment thin ice.
Thus, the stay of an action against a sitting president would not likely ameliorate the
adversity that the court's critics imply would distract him from his governance.
Implicit in the Supreme Court's decision was its assumption that the president would
neither lie during the course of discovery nor get caught lying nor commit any crimes or
other offenses. Whatever we may think about the scope and method of the OIC investigation
that followed the president's deposition testimony in the Jones case, it can hardly be
gainsaid that his completely truthful testimony would not have embroiled him in the
gargantuan legal proceedings that then distracted the entire nation. Granted, such
truthful testimony would indeed likely have nonetheless caused grief and even some madness
in the land. Should that possible outcome have been part of the Supreme Court's calculus?
If the idea is to eliminate all distractions for a sitting president because of the
importance of his work, then many things follow. Including that he would not be permitted
to bring a civil action while he is president. Including that his wife could not initiate
divorce or child custody proceedings. Including that no member of his family and no close
friends may become seriously ill during his tenure or, if they do, then no one must tell
him about it. And so on.
The flaw here is in thinking that our president must be insulated from reality.
Everyone has distractions. Those who cannot function because of them should resign from
positions of responsibility.
Brian L. Buckley is a Los Angeles attorney who
lectures on cyberlaw and intellectual property and is currently representing an internet
website in a copyright infringement action brought by the Washington Post and the Los