Jan. 9, 1997
Vol. 16, No. 8

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    Stone and Strauss represent nation's president in Supreme Court

    When the President of the United States calls, the University of Chicago answers.

    Provost Geoffrey Stone, the Harry Kalven Jr. Distinguished Service Professor in the Law School, and David Strauss, the Harry N. Wyatt Professor in the Law School, are two of the attorneys representing President Clinton in the U.S. Supreme Court on the constitutional question raised by the filing of a lawsuit by Paula Jones: Can the president be compelled to go through the legal process of a personal action suit while he is in office?

    "The case raises fascinating and unprecedented issues of separation of powers and of the independence of the executive branch," Stone said. "It is one of those relatively rare cases that, whichever way it is decided, will change significantly our constitutional understandings.

    "Moreover, let's face it, it's pretty hard for any lawyer not to be tempted when asked to represent the president of the United States in the Supreme Court."

    Stone and Strauss, both experts in constitutional law, were approached in May to assist in this portion of the case. They wrote the president's brief in the Supreme Court, and are the only academic experts asked by the White House to help represent the president.

    "The issue is whether the litigation of a private civil-damages action against the president of the United States must be deferred until he leaves office," Stone said. "Put differently, the issue is whether a private individual can -- for reasons good or bad -- haul the president of the United States into court and thus engage his time, effort, energy and attention in defending himself against a private civil claim, to the possible detriment of the national interest."

    Strauss said the current issue is quite limited.

    "President Clinton is not saying that he can't be sued -- he's only saying that the suit should not go forward while he is president," he said. "Our argument is that, except in extraordinary cases, the president should not have to defend a lawsuit while he is in office, for several reasons."

    First, he said, the president should spend his time dealing with the problems of the nation, not a private lawsuit. Second, if people are allowed to sue the president while he or she is in office, whoever holds that office would be an easy target for people who have no legitimate claim but sue to harass or to gain publicity.

    "Third, the courts -- which are part of the judicial branch -- should not be in the business of looking over the president's shoulders and telling him how much time he should be devoting to a lawsuit and how much to his job -- which is the position the courts would inevitably be in if such suits are allowed," Strauss said.

    In addition, he said, it is common for lawsuits to be delayed this way when they may disrupt institutional interests. "Especially in a suit of this kind, it is just not that burdensome for the person bringing the suit -- they can go ahead with the suit once the president becomes a private citizen."

    In looking at a related case, Stone said, the Supreme Court determined that "to disturb the president with defending civil litigation that does not demand immediate attention . . . would be to interfere with the conduct of the duties of the office."

    Although this is the first time in history such an issue has arisen, Stone noted that Thomas Jefferson, anticipating such a situation, offered the following words: "Would the executive be independent of the judiciary, if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?"

    The oral argument before the Supreme Court will be presented on Monday, Jan. 13. A decision will be announced in the spring.

    -- Catherine Behan