Immunity Defense Legally Frivolous
Fein, Bruce, Insight on the News
On May 6, Paula Corbin Jones filed a four-count complaint against President Clinton in the U.S. District Court for the Eastern District of Arkansas. The suit charges that on May 8, 1991, then-Gov. Clinton made uninvited sexual overtures to Jones in a Little Rock hotel. Compensatory and punitive damages are sought.
Clinton's lawyer, Robert S. Bennett, has indicated an intent to file a presidential immunity defense even though the lawsuit assails the private conduct of Clinton before he reached the White House. That tactic, however, would seem an act of desperation, akin to Richard Nixon's temporizing over Watergate under the false banner of executive privilege.
The law views with deep skepticism any immunity claim that would leave a wrong without a remedy. In the landmark case Marbury vs. Madison (1803), Chief Justice John Marshall tutored: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury... The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right."
Echoing these elevated sentiments, Associate Justice Samuel Miller amplified in United States vs. Lee (1882): "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it."
Following the teachings of justices Marshall and Miller, the Supreme Court denied that governors were immune from damage suits in Scheuer vs. Rhodes (1974). In that case, the governor of Ohio was sued under federal law in connection with the May 1970 deaths of Kent State University students stemming from campus turmoil in the wake of the U.S. incursion into Cambodia. Writing for an 8-0 majority, Chief Justice Warren Burger elaborated that federal law and precedents "would be drained of meaning if we were to hold that the acts of a governor or other high executive officer" were placed beyond challenge in the courts.
Intimate presidential assistants and cabinet officers were held answerable in damage suits for alleged wrong-doing in Harlow vs. Fitzgerald (1982) and Butz vs. Economou (1978). The Supreme Court explained that the greater the power of high officials, the greater the danger of abuses, and thus the greater the imperative of a damage remedy to vindicate legal rights. …