Paula Corbin Jones v. William J. Clinton

theories, legal Center; Estrich, and the facts relevant to Kingsley those Susan Robert counts and Science, theories. of Professor Law Political University of Southern California Law Though argument their quite is not as Center; Fallon, Jr., Richard H. Profes- mud, clear as apparently the Geschkes chal Law, School; sor of Harvard Law Dan- lenge the verdict instructions because Farber, Henry iel A. J. Fletcher Profes- they appears excluded “issues of fact.” This Dean, University sor & Associate of to relate to jury the Geschkes’ claim that the School; Philip Minnesota Law P. Frick sufficiently was somehow not on instructed ey, Faegre Professor, & Benson Univer theory. their argu scheme-to-defraud This sity School; Minnesota Law of Paul D. ment is without merit because the district Gewirtz, Potter Stewart Professor of clearly court used the complaint Geschkes’ Law, School; Constitutional Yale Law framing basis for presented the issues Gunther, Gerald William Nelson Crom- jury. Professor, School; well Stanford Law We have reviewed the verdict form and the Jeffries, Jr., Spies John C. Emerson G. instructions they only find that not Professor and Horace Goldsmith Re- W. erroneous, rather, affirmatively, search Professor and Academic Associ- they were The correct. instructions and the Dean, University Virginia ate of School gave jury verdict opportunity a fair Law; Levinson, of Sanford W. St. John view the case ways. one of two Either the Garwood & W. St. John Garwood Jr. conspired defendants to underfinance the Regents Law, University Chair of raequetball project they club so could seize it Law; Marshall, School Texas of Burke foreclosure, did not. The Geseh- deB. Nicholas Katzenbach Professor kes opportunity had a fair present then- Emeritus, School; Yale Law Judith Res case to a jury peers. of jury their The nik, Professor, B. Evans Orrin Universi- rejected their claims the defendants ty Center; of Southern California Law here, and we think the evidence was more Sherry, Suzanna Earl R. Larson Profes- than support sufficient to finding. Ac- sor, University of Minnesota Law cordingly, judgment of the district court School; Shiffrin, Steven H. Professor of is affirmed. Law, School; Cornell Law Kathleen M.

Sullivan, Law, Professor of Stanford School; Tribe, Law Ralph Laurence H. Tyler, S. Jr. Professor of Constitutional Law, School; Harvard Law The Ameri- can Foundation; Civil Liberties Union Stephen Burbank, B. Fuller, G. Robert Law, University Jr. Professor of JONES, Appellee- Paula Corbin Pennsylvania School; Law William Co- Cross-Appellant, hen, C. Wendell and Edith M. Carlsmith Law, University Professor of Stanford School; Larry Kramer, Law Professor CLINTON, William Appellant- Jefferson Law, University New York Law Cross-Appellee. School; Merritt, Deborah J. Professor of Studies, University Law and Women’s Danny Ferguson, Defendant. College Law; Geoffrey Illinois P. Miller, America; United States of Kirkland & Akhil Reed Ellis Professor of Amar, Southmayd Law, University Chicago Professor Law Law School; Yale Bloch, School; Law Nagel, Susan Rothgerber Low Robert F. Ira Law, Georgetown Professor Law, Law Professor Constitutional Uni- School; Bruff, H. Phillip Harold versity School; Donald of Colorado Law Rich- Rothschild George Research Professor, Parker, ard Law, Professor of Harvard Washington University School; National Law Powe, Jr., Law L.A. Scot Anne Law, Regent Univer- Professor Green School; Stephen B.

sity Law Texas Berger

Presser, of Le- Professor Raoul University History,

gal Northwestern Rotunda, Law; Al- D. Ronald

School Law, Jenner, Professor of E. Jr.

bert Law; College

University of Illinois Alstyne, R. and William Van

William Law, Professor of C. Perkins

Thomas Law, University Amicus

Duke School

Curiae. 95-1050, 95-1167.

Nos. Appeals, States Court

United

Eighth Circuit. Sept.

Submitted 9, 1996.

Decided Jan. Bennett, Fairfax, VA,

Robert argued, Carl Rauh, Kriegel, Alan Amy S. R. Sabrin and Stephen brief, Vaughn, P. Washington, on D.C., Kathlyn Stephen Eng- Graves strom, Rock, AR, brief, Little appel- on for lant. Davis, Fairfax, VA, argued,

Gilbert Joseph Traylor, Cammarata and Daniel M. Little Rock, AR, brief, appellee. on BOWMAN, ROSS, BEAM, Before Judges. Circuit BOWMAN, Judge. Circuit We have before us this appeal the novel question whether person currently serv- ing as President of the United States is entitled to liability from civil acts, ie., his unofficial by acts committed him in personal capacity his rather than in capacity his as William President. Jefferson Clinton, who personally, here is sued and not President, appeals as from the District Court’s decision staying trial proceedings, for the duration of presidency, his on claims brought against by him Paula Corbin Jones. argues

He that the court instead should have dismissed Mrs. prejudice Jones’s suit without refiling of her suit longer when he no is President. Mr. challenges Clinton also District Court’s discovery decision to allow proceed in during stay the case trial. cross-appeals, Mrs. Jones seeking to stays have the entered the District Court lifted, so might proceed that she to trial on her claims.1 part We affirm and reverse part, and remand to the District Court.2 1. staying In addition to the trial on Mrs. Jones's parties, addition to the briefs of the amicus Clinton, against claims support Mr. briefs have been filed District Court of Mr. Clinton the United stayed against group States also of law trial Mr. Clinton's co-defen- professors Amar, Bloch, including suit, Professors Trooper dant in the Danny Arkansas State Bruff, Estrich, Fallon, Jr., Farber, Frickey, Gew- Ferguson. irtz, Gunther, Jeffries, Jr., Levinson, Marshall, trial,”3 granted request and thus filed suit May Mrs. Jones

On against Mr. Clinton and Mr. the District Court the trial for the duration of Clin- Trooper Arkansas State Danny Ferguson, an Clinton, ton’s service as President. Jones security Mr. Clinton’s assigned to who was (E.D.Ark.1994). F.Supp. Con- governor Ar- during as his tenure detail cluding against Trooper claims Fer- kansas, alleged to have occurred for actions factually guson legally intertwined Rock, in Little an incident beginning with with the claims Mr. the court Arkansas, May when suite on hotel against Trooper Fergu- stayed also the trial and Mrs. Jones governor was Mr. Clinton long Mr. son for as Clinton employee. Pursuant to 42 U.S.C. a state was discovery permitted on Mrs. Jones’s (1988), alleges Mr. § 1983 Mrs. Jones Trooper against claims both Mr. Clinton and law, Clinton, her color of state violated under appeal, Mr. Ferguson go to forward. On equal protection and rights to of the District Court’s Clinton seeks reversal by sexually harassing and as- process due rejection com- of his motion to dismiss the alleges further that Mr. saulting her. She immunity plaint ground on the Ferguson conspired to Trooper and Clinton order that court to dismiss and asks us to brings under rights, a claim she violate those (1988). entirety, without complaint Mrs. Jones’s action in its § Her also 42 1985 U.S.C. claims, alternative, state law supplemental prejudice. two In the he asks this includes intentional inflic- Mr. Clinton for against one denying his the decision Court reverse distress and the other of emotional tion stay discovery. cross- motion to Mrs. Jones Trooper Fergu- and against both Mr. Clinton stay appeals the District Court’s decision for defamation. son against claims both Mr. Clin- the trial of her Trooper Ferguson.4 ton and Clinton, im asserting a claim of Mr. suit, to dis munity filed a motion from argues Mr. that this suit should Clinton prejudice to its complaint without miss the solely of his status as dismissed because or, in longer President

refiling when he is no immunity The he seeks would President. alternative, stay proceedings for a of the President, long he is protect him for as as long On December for so as he is President. expire presidency has would when Court, 1994, rejecting 28, the District us, question before completed. The been immunity, Mr. denied application of absolute then, is entitled to is whether the President complaint. motion to dismiss Clinton’s President, immunity, long as as he is however, find, separa that for The court did alleging behavior from civil suits actionable Mr. Clinton was enti tion of reasons private capacity rather than immunity him in his “temporary or limited tled to a Tribe; Resnik, Shiffrin, Sullivan, ap- staying presently the orders trial are Sherry, Thus jurisdic support "pendent appellate American pealable Mrs. Jones The and in under our Mo., by group a Liberties Union Foundation City Springs, Civil Kincade v. Blue tion.” See Burbank, including professors Professors 389, (8th Cir.1995) of law Cohen, Kramer, Merritt, (analyzing Swint 64 F.3d 394 Miller, Parker, Nagel, Commission, -, County - U.S. v. Chambers Powe, Presser, Rotunda, Jr., Alstyne. and Van 1203, (1995), L.Ed.2d and con 115 S.Ct. 131 60 appellate jurisdiction cluding pendent re justified also on the 3. The District Court Circuit). Eighth concept a viable in the mains authority under Rule 40 of the Feder- basis of its appeal and the cross- All issues raised in equity pow- of Civil Procedure "the al Rules (with portions appeal exception of those Clinton, F.Supp. v. 869 ers of the Court.” Jones concerning the defamation claim the orders 690, (E.D.Ark.1994). 699 7) see note chal Mr. —the infra suit, juris- argues lenges that we do not have to the 4. Mr. Clinton to the non-dismissal cross-appeal trial, from discovery— Mrs. Jones's diction to hear stays to the allowance of trial, non-final, staying are the orders by answering question: one is are resolved conclude, however, interlocutory We orders. immunily, for the entitled to cross-appeal "inextricably is that Mrs. Jones’s presidency, civil suit for his duration from appeal, Clinton's which intertwined” with Mr. imagine issues It is unofficial acts? difficult exception to the us under the before these, answering than where more "intertwined" judgments appeal- general only are rule that final question of law resolves them all. one 511, 525, Forsyth, 472 U.S. able. See Mitchell 2806, 2814-15, L.Ed.2d 411 86 105 S.Ct. 1358 (1983), capacity

his official as President. government We hold L.Ed.2d 96 and even offi that he is not. special require cials whose functions do not exemption liability may full from have more We start with the truism that Article qualified immunity limited official their Constitution, II of the which vests the execu acts, Navarette, e.g., Procunier v. 434 U.S. power government tive federal 855, 859, 98 S.Ct. 55 L.Ed.2d 24 President, monarchy: did not create a (1978) officials); Strickland, (prison Wood v. President is cloaked with none of the attrib 308, 321-22, 992, 1000-01, 420 U.S. 95 S.Ct. sovereign immunity. utes of To the con (1975) (school officials); L.Ed.2d trary, govern like all other Rhodes, 232, 247, Scheuer v. officials, subject ment to the same laws (1974) (offi 1683, 1692, apply to all other members of our soci Pierson, Branch); cers the Executive ety. observed, Supreme As the Court has (police U.S. 87 S.Ct. at 1219 officers system jurisprudence “Our rests on the arrest). unaware, making an We are howev assumption individuals, thát all whatever er, any public case in which official position government, subject their granted any immunity ever has been Economou, federal law....” Butz v. suit for his unofficial and neither the 57 L.Ed.2d court, Supreme any Court nor other the Dis Nevertheless, 895 mindful that for excepted, appears trict Court ad have general good the sake of the nation’s precise dressed today: issue before us empowers Constitution officials to act within whether the President is entitled to immuni scope responsibilities,.the of their official ty presidency for the duration of Supreme when recognized Court has “that there sued for his special are unofficial some officials whose functions actions. require exemption liability” a full from for immunity The that has been found for performance 508, their of official acts. Id. at product official acts prudential is not the of a 98 S.Ct. at 2911. The list of those entitled to doctrine created the courts and is not to immunity liability absolute from civil includes granted judicial as a largesse. matter of the President of the United States for his Imbler, 421, 424 U.S. at 96 S.Ct. at 990-91 Cf. ( acts, Fitzgerald, official Nixon v. 457 U.S. § “[O]ur earlier decisions on 1983 immu 731, 756, 102 2690, 2704, S.Ct. 73 L.Ed.2d 349 products judicial nities were not fiat that (1982); Congress members of legis for their in government officials different branches of motive, regardless lative under the differently amenable to suit under Clause, Speech and Debate U.S. Const. art. 1983.”). Rather, § question whether to I, 6, Eastland, § 82, Dombrowski v. 387 U.S. grant immunity government to a official is 84-85, 1425, 1427-28, 18 87 S.Ct. L.Ed.2d 577 “guided by Constitution, statutes, federal (1967) curiam); Brandhove, (per Tenney v. history” and is public policy. informed 367, 372, 377, 783, 786, 788, 341 U.S. 71 S.Ct. Fitzgerald, 747, 102 457 atU.S. S.Ct. 2700. (1951); 95 judges L.Ed. 1019 in courts of “In the inquiries case of the President jurisdiction general judicial acts, Stump for history policy into ... converge. tend to 349, Sparkman, 359-60, v. 435 U.S. 98 S.Ct. Presidency Because the through did not exist 1099, 1106-07, (1978); 55 L.Ed.2d 331 Pier- development law, most of the any of common 547, 554, Ray, 1213, son v. 386 U.S. 87 S.Ct. analysis historical must draw its evidence (1967); prosecutors primarily from our heritage prosecutorial functions, Pachtman, Imbler v. 748, 102 and structure.” Id. at S.Ct. at 2700. 409, 427, 984, 993, Thus “inquiry the historical policies involves (1976); L.Ed.2d 128 and certain executive principles implic be considered performing judicial officials pros certain it in the nature of the President’s in a office ecutorial in capacities, functions their official system structured to gov achieve effective

Butz, 514-15, 438 U.S. at 98 S.Ct. at 2914-15. ernment under a constitutionally mandated addition, witnesses are entitled to absolute separation powers.” Id. immunity testimony given from suit for judicial LaHue, proceedings, suggestion Briscoe There is no in this case that 1108, 460 legislation S.Ct. 75 federal is the source of either the abrogation special immunity Mr. seeks or an thd nature of the President’s Clinton constitu- functions, presidential immuni tional previously appro- declared office and we think it of a priate recognize at 2700 n. ty. id. at 748 n. absolute Presidential im- Cf. munity damages liability of action in the (noting that the causes acts within perimeter’ “implied” responsi- in the Constitution and the ‘outer of his official case were law, bility.” declining By to “ad Id. at 102 S.Ct. at and therefore federal definition, immunity question directly the as it unofficial acts are not within the dress Congress expressly perimeter responsi- had creat of the President’s official would arise all, bility perimeter.5 damages action the President” even the outer ed a acts). struggle Fitzgerald his official Nor is Court’s to establish presidential immunity explicit in the text of for acts within out- kind Instead, perimeter responsibility immuni official whatever er belies the Constitution. notion, ty enjoys by implication here advanced Mr. the President flows doctrine, beyond perimeter powers from the this outer there is still immunity waiting more which itself is not mentioned the Constitu to be discovered. tion, powers Fitzgerald in the division of We thus are unable to read as' reflected support proposition separa- among the three branches. See U.S. Const. for the that the I, II, Supreme provides immunity tion of arts. III. The Court Fitz doctrine gerald, an exhaustive examination of for the individual who serves as after history significance seeking him and the constitutional from lawsuits to hold accounta- presidency, that absolute immuni ble for his unofficial actions. held See id. at C.J., (Burger, ty liability concurring) from civil for official acts is “a 102 S.Ct. at 2706 (“a President, functionally Congress, incident of the Presi like Members of mandated office, unique judges, prosecutors, congressional dent’s rooted the constitu aides— having immunity separation tradition of of and all absolute not im- tional [is]— duties”).6 749, supported by history.” 457 at mune for acts official our U.S. outside Moreover, “special having arguments at 2701. There is a solici considered the S.Ct. ease, alleging put present in tude due to claims a threatened forward the we cannot prerogatives grounded of essential Presidential discern reason in the Constitu- breach 743, powers.” extending presidential immunity of Id. at tion for under be- yond perimeter at in 2698. the outer delineated Fitz- gerald. Accordingly, that a we hold we, parties agree, and so that do is not immune from suit for his subject the fundamental on the of undisputed unofficial acts. In this case it is immunity presidential plurality opinion is the by alleged that most of the acts Mrs. Jones above, Fitzgerald. in As noted the issue clearly presi- fall outside the zone of official before the Court in that case was whether responsibility, given that dential oc- immuni the President is entitled to absolute governor curred while Mr. Clinton was still (rather immunity ty qualified than or no of Arkansas.7 all) liability immunity personal at from civil By only Stressing immunity that for his official acts. five-to-four (until that, majority, only temporary the Court held view of claimed here is the end “[i]n dissenting opinion presidential press secretary We that Clinton’s while Mr. note in the question whether present Fitzgerald's Clinton was President. The case does not mention “outer " perimeter’ of these actions fall inside the ‘outer perimeter,” explain much less how unofficial responsibility,” [the President's] official Nixon protected acts could come within the zone. Fitzgerald, S.Ct. (1982), as to come so liberally dissenting opinion, citing 6. The while scope im- within the of the President’s absolute concurrence, Burger’s quoting and Chief Justice acts, munity for official is not free from doubt. 1367-68, 1369, post at does not mention that the particular by has not been addressed This issue expressly Chief Justice stated that the President Court, as to the cir- the District and the record is "not immune for acts outside official duties.” press secretary’s statements is cumstances of fully developed. is- not We therefore leave this by claim 7. Mrs. Jones's state law defamation con- the District Court sue for initial resolution upon complete alleged record. have been taken Mr. after remand and a more cerns actions question presidential immunity presidency), of Mr. Mr. and on the Clinton’s Clinton at 2703. his amici would have us consider the nature official acts. Id. S.Ct. complaint, Fitzgerald as well as the But the in was troubled of Mrs. Jones’s Court timing filing (apparently potential impact private civil suits of her suit limitations), just arising performance within the statute of and out President’s performance important is his official on the future conclude her suit neither duties duties, urgent, certainly consequential not whether the President nor not those enough trump qua Mr. Clinton’s claim to tem- individual citizen would have the time to poral immunity But that is not in a lawsuit. As the Court from suit. defendant constitutionally explained, him the test. Mrs. Jones is enti- President must concern “[A] equal likely tled to access to the courts and to the self with matters to ‘arouse the most ” protection very feelings,’ precisely “it such of the laws. “The essence of intense liberty certainly right greatest public consists cases that there exists the protection providing individual to claim the interest in an official ‘the maximum laws, injury.” ability fearlessly impartially whenever he an deal with’ receives (1 Cranch) Madison, 752, 102 Marbury v. Id. duties office.” (citations omitted). quoted 2 L.Ed. 60 Mrs. at 2702 cases Jones retains reading Fitzger It is from a right in her suit Mr. re- clear careful justification gardless ald that for the absolute of what her claims be or when (if filed), timely conferred that case was concern her suit was filed otherwise that the President’s awareness of his essen provided challenging that she is not actions tially potential personal liability infinite presiden- that fall within ambit of official virtually every official action he would takes responsibility. reject tial further We presidential have adverse influence on the suggestion that in filing Mrs. Jones’s motives decision-making process. suit, The rationale of alleged political, to be should be exam- that, Fitzgerald majority pro without ined, and that her suit should be dismissed liability tection from civil for his official persuaded objective bring- we are that her (or the President would make refrain ing pure. than the suit is less Such an decisions, making) official the best approach would convert a immu- nation, interests of the but in an effort to nity analysis taking weighing into the personal liability. avoid lawsuits and This recriminations, accusations and an exercise inapposite only personal, rationale is where unnecessary inappropriate proper to the private by conduct a President is at issue. immunity determination of a claim of based on the Constitution. claims, except Mrs. Jones’s for her that, claim,8

Mr. argues presently Clinton if he is by defamation concern actions Mr. acts, that, cavil, private beyond amenable to suit for his the Clinton are unrelated to proceedings against inevitably him in- will his duties as President. This lawsuit thus upon trude implicate presidential the office of in contra- does decision-mak Fitzgerald’s forward, teachings, noting ing. goes vention of If this suit the President Court’s concern that carry [the the “diversion of still will be able to out his duties energies by private concern with might President’s] without concern that he be sued unique damages by aggrieved by lawsuits would raise risks to the effec- a constituent functioning government.” tive of presidential Though 457 U.S. at some official act. ame Thus, acts, private 102 S.Ct. at 2702. Mr. Clinton nable to suit for his the Presi ignore Fitzgerald immunity would have us the line that dent retains the absolute found in Fitzgerald presidential draws between official and unofficial acts and for official weight instead decision-making impaired. “balance the constitutional of will “In not be dangers the interest to be defining scope served of an official’s absolute privilege, sphere protected of intrusion on the and functions of ... of action Branch,” analysis closely the Executive immunity’s under- must be related to the by reaching justifying purposes.” taken the Court in its decision Id. at supra 8. See note connection, by much Constitution no “[T]he no less means con

2704. We see templates separation one, total of each of [the] the unofficial actions Mr. close between three essential branches of Government.” judicial process from wishes to shield Clinton Valeo, 1, 121, Buckley v. 96 S.Ct. purposes presidential justifying (1976) curiam). 612, 683, (per immunity in Fitz- as set forth the Court provided Under the checks and balances gerald. Constitution, in the all branches have the capacity way upon to intrude in some denying argues that Clinton Mr. province of the other branches. But under immunity give judiciary will claim to Constitution, and because of same those unconstitutionally blanche to intrude carte balances, may cheeks and no one branch upon Branch and in fact will the Executive upon intrude another such an extent that disrupt performance incapable the threatened branch is rendered argument responsibilities. As the duties performing constitutionally assigned its goes, court will control the because a federal duties. See id. at 96 S.Ct. at 683-84 necessarily litigation, the Third Branch will (“The regarded Framers the checks and bal through interfere with the Executive Branch they tripartite ances that had built into the scheduling powers the court’s orders and its self-executing Federal Government as a safe contempt citations and sanctions. to issue guard against aggran the encroachment or sweeping that this But Mr. Clinton’s claim expense dizement one branch at the judiciary to interfere with suit will allow the other.”). needed, believe, What we constitutionally assigned duties separation powers problem avoid a is not Branch, Executive and thus will violate the actions, immunity from suit for unofficial doctrine immunity that would accord the President a granted, detailing is not without degree protection private from suit for his any specific responsibilities explaining how enjoyed wrongs public no other official degree or the to which are affected (much citizens), ordinary judicial less (and, dissent, post the suit unlike the management case sensitive the burdens of 1370we think it is Mr. Clinton’s burden to do presidency and the demands the Presi so), ground granting presi is insufficient dent’s schedule. The trial court has broad temporarily. immunity, dential even See scheduling discretion to control the of events Butz, at 2910 438 U.S. at on matters its docket.9 We have (“[Fjederal officials who seek absolute ex confidence that the District Court will exer emption personal liability for unconsti way cise its discretion such tutional conduct must bear the burden with lawsuit move forward the reason showing public policy requires an ex cases, dispatch able that is desirable all emption scope.”); of that United States cf. scheduling creating without conflicts that Nixon, 3090, 3110, 418 94 U.S. performance of would thwart the President’s (1974) (holding presiden no his official duties. privilege presidential tial to commu attaches subpoenaed filing nications of numerous criminal case when The unfettered only against privilege asserted “is based on the vexatious or frivolous civil lawsuits gen confidentiality”). sitting eralized interest in We re Presidents for their unofficial acts ject dissenting argument, opinion Mr. Clinton’s and instead fo that Mr. Clinton and the cus our attention on the true in this case envision if Mr. Clinton is not issues, immunity already granted temporal we have dis from Mrs. which cussed, only upon question presiden speculative, which is not the Jones’s lawsuit immunity hinges. historically unsupported. tial To date no court Notwithstanding justify 9. dis orders that we consider an abuse of dis- District Court's broad docket, order, delaying concerning the trial until cretion in its own cretion. Such an matters President, stays grant longer alternative is the func- rationale for the court Mr. Clinton is no grant power equivalent temporary Rule Civil Proce tional of a immu- ed—its under Federal Court," which, today, equity powers nity we Mr. Clinton is dure 40 and “the to as hold F.Supp. attempts constitutionally to entitled. Jones v. not 699 — ability responsibili- fulfill that an incumbent President to his constitutional

ever has held claims, any immunity category unofficial with which has from suit for his ties. Frivolous Although quite familiar, generally have actions. our Presidents never courts are can any immunity recognized having ordinarily as expeditiously been can be handled seeking for civil lia- from lawsuits remedies be terminated with little or no involvement allegedly by them in their bilities incurred person sued.

personal dealings, appear it would that few Finally, reject

such have been filed.10 we the notion that lawsuits presidential immunity seeking in civil cases himself and his official While the President remedy for unofficial acts can conferred inevitably high visibility conduct have the on an ad hoc basis. There is no constitution Fitzgerald, Court concerned court, proposition that a in its al basis for (noting 102 S.Ct. at 2703 “the discretion, grant immunity could refuse to to visibility [the President’s] office and the in, example, a President suits for arrear people” on countless as effect his actions ages support “more child or the case of the setting up easily him tar- as “an identifiable injunctive urgent plaintiff seeking need” of a get damages”), for suits for civil his unoffi- relief, Appellant’s Reply Brief at n. or cial, private footing. conduct is on a different n plaintiff exigent of a who shows circum Although may attract such conduct wide- stances, granting immunity from while suits spread attention when someone elects to declaratory money damages relief or public, it make the unofficial acts plaintiff exigency. no where the demonstrates person who serves as unlike the sitting A is either entitled to im acts, likely af- President’s official are not munity from suit for his unofficial or he Rather, people.” fect “countless unofficial noted, presidential is not. As we immu have only conduct will affect those who traffic with nity prudential is not a doctrine fashioned personal capacity. the President his Thus the courts. Mr. Clinton is entitled to immu potential plaintiffs might the universe of who all, nity, only if at because the Constitution seek to hold the President accountable for it. ordains Presidential thus can alleged private wrongs his via a civil lawsuit granted not be or denied courts considerably smaller than the universe of exercise of discretion. The discretion of the plaintiffs potential might who seek- to hold courts in such suits as this one comes into the President accountable for his official con- duct; case, play, case-by-case in deciding on a basis plaintiff in the latter could be complaint virtually anyone aggrieved by pres- alleging private whether a civil who feels If, contrary history wrongs sufficiently compelling idential action. and all so as to be expectations, permitted proceed with reasonable President ever be- an incumbent defendant, by private-wrong controlling comes so burdened lawsuits President as but in him scheduling necessary his attention to them would hinder of the case as to avoid office, carrying specific, out the duties of then particularized, interference with clearly duty-bound clearly the courts would be articulated duties. If the scheduling exercise their discretion to control trial trial preliminaries itself become protect and the so performance like as to the President’s barriers to the effective parties only prior appear have identified three It does not that either Mr. instances in which Presidents have any immunity been Roosevelt or Mr. Truman claimed litigation concerning involved in their out- acts Kennedy, from suit. In the action Mr. he side official duties. See also Jones v. asserted, post-election, temporarily that he was F.Supp. at 697. were Those suits protected suit under the Soldiers' and Sail Roosevelt, Truman, against Harry Theodore S app. ors' Civil Relief Act of 50 U.S.C. case, Kennedy. and John F. In each the action (1988 1993), Supp. given §§ 501-93 & V began serving was filed before the defendant President, as status de as Commander-in-Chief. The court against and the suits Presidents Kennedy's stay, apparently nied Mr. motion for a already appeal Roosevelt and Truman were on opinion, a without written and the case eventual before those men assumed the office of Presi- 757,200 ly Bailey Kennedy, v. settled. No. Roosevelt, People Hurley dent. 544, ex rel. 179 N.Y. 1962); 757,-201 (Cal.Super.Ct. Kennedy, Hills v. No. (1904) mem.); (per 71 N.E. 1137 curiam (C 1962). al.Super.Ct. Truman, DeVault v. 354 Mo. 194 S.W.2d duties, remedy missing to the office. is argu- Mr. Clinton’s is What from their official rescheduling, for additional pursue analysis motions ments is a coordinated and balanced time, Again, we have or continuances. impact stay litigation, includ- District will dis- confidence that the Court ing embargo discovery, an on all will have on responsibility protect to the Presi- charge its Ms. Jones and her claims. This should also government’s dent’s role as our chief execu- be of substantial concern because it involves officer, impeding Mrs. tive without Jones’s rights fundamental governing constitutional right to have her claims heard without undue judicial process access to and use the delay. party If either believes the court is under the First and Fourteenth Amend- failing discharge responsibility, that to the right timely jury ments and the to a trial petition for a proper course is to this Court Amendment, identify under the Seventh to prohibition. writ of mandamus or only specific a few omissions. up, To sum we hold that the Constitution incorrect, view, my It is for Mr. Clinton upon does not confer an incumbent President delay and his amicus to assert that the is any immunity from civil actions that arise consequence no to Ms. Jones. Aside from Accordingly, from his unofficial acts. we af- justice adage delayed justice that is de- denying firm the District Court’s decision nied, dangers Ms. Jones faces real of loss of Mr. motion to dismiss Mrs. Jones’s Clinton’s through evidence calami- unforeseeable discovery to allow suit and decision passage ties inevitable with the of time. To reason, proceed. to this ease For the same argue problem that this be dealt with grant- we reverse the District Court’s order episodic exceptions when the risk of loss is ing stay trial Mr. Clinton’s motion to apparent point. Only rarely is to miss the presiden- this matter the duration proceed does life such foreseeable fash- cy. appeal Mrs. of the District Jones’s ion. staying post-judgment Court’s order discov- ery during appeal pendency of this is “[wjhere states, The dissent is no there moot, Mr. dismissed as as is Clinton’s chal- urgency pursue damages, to suit for lenge jurisdiction appeal. our to that hear proper opportunities course is to avoid Court, ease is District The remanded breaching separation powers altogeth- stays

with instructions to lift the by holding litigation abeyance er until court has entered and allow Mrs. Jones’s a President leaves office.” at 1369. Infra Trooper Fergu- suit Mr. Clinton and urges abeyance The dissent total of both proceed in a son manner consistent with this, discovery perceive perhaps I and trial. opinion this and the Federal Rules of Civil incorrectly, implicit finding to be Procedure. is, indeed, urgency there no real to Ms. and, thus, damages Jones’s suit for civil BEAM, Judge, concurring Circuit constitutionally based specially. litigation, in all doctrine demands that this I concur in the conclusions reached manifestations, its be abated until Mr. Clin- Judge separately Bowman. I write to ex- protect ton leaves office—this to the constitu- are, press my which views on three matters grant given tional of executive to a mind, my insufficiently discussed either. view, my greatly President. opinion court or the dissent. appeal oversimplifies the issues in this danger presidency. overstates the to the I. Jones, potential prejudice to Ms. as reaches, noted, approaches, at least earlier vigorously Mr. Clinton and his amicus magnitude. If a blanket present position potential impact their on the granted discovery precluded sug- litigation of this civil on the office and the amicus, gested by Mr. and his Ms. Clinton And, presidency. ques- without duties of the (and way I tion, Jones will have no know of they con- raise matters of substantial by counseling given obligations of none has been advanced those cern the constitutional immedi- action),1 to these claims should be perpetuate to the tes- defenses course of this by ately up taken and decided the district any should timony party or witness during period court. incompetent die or become abeyance. in the matter is held Should recognize po- appears to The dissent key a witness oc- incompetence of death or irreparable harm to Ms. tential for Jones cur, proving the elements of Ms. Jones’s proposes that her interests —as balanced impossi- alleged of action will become causes ana- against the interests of Mr. Clinton —be Thus, would be her “chose in action”

ble. by shifting lyzed weighed the burden obliterated, substantially damaged or at least “irreparable injury” to Ms. establishing timely access if she is denied reasonable and Jones, along burden on with the additional workings tribunal. to the of the federal showing “that the immediate Ms. Jones of adjudication significantly claims of the suit will It that some of Ms. Jones’s is true ability to the impair or as- the President’s to attend guardian, to her heirs would survive incompetence of his office.” at 1369. signs in the of her or duties event Infra death, way preserve cites no established or case assuming a is found to dissent burden-shifting strategy, precedent for this Her claim of defamation is crucial evidence. certainly by analogy reasonably compa- to It almost even some a different class. I totally extinguished either rable situation. have discovered none. would be should view, regard, way, my no party include her defa- there is die. This would also successfully against Trooper litigant a could ever shoulder the mation claims asserted Fer- dissent, assigned by especially if guson. burden determine, discovery prohibited. all To as applica pleadings, From the the forum law adjudication,” precondition to “immediate a easily claims is not ble to her defamation that at some future time the lawsuit will not discernible and I have not canvassed the law significantly impair Presi- the duties of the jurisdiction. It seems conceivable Thus, impossible an task. dent would be however, note, appropriate that under Ar valueless, safety proposed dissent’s valve is law, example, kansas for the defamation except recognition potential in its expire of either claims would on the death irreparable by harm to Ms. Jones caused 62—101(b) § party. Ann. See Ark.Code 16 — stay. total (Michie Supp.1993); 1987 & Parkerson v. (8th Carrouth, Notwithstanding 782 F.2d 1451-53 Cir.

1986). dissent, burden, expresses by the I think Arkansas the rule concerns outlined shouldered, view, jurisdictions. Accordingly, my any of most one can should be as readily irreparable stay litigation, by party seeking harm that a other civil see the viability delay discovery trial. (assuming of this claim its as we the usual course of Otherwise, point) bring require- must at this will to Ms. Jones. we will have established Thus, stay proportions requested the total Mr. Clinton ments of insurmountable dissent, amicus, litigant urgent who have a viable and and his and embraced immediately produce irrepa sitting per- civil claim a President or will threat injury. haps, against important governmental other rable constitutionally figures with established though Even is not duties. liability immune from for his nonofficial con- duct, approach staying litigation it is fair to that some of Ms. This is a note claims, concept. Traditionally, presently legal defamation al- well-established Jones’s leged, may perime- applicant fit well within the “outer has the burden hardship inequity responsibility showing specific ter” of official as discussed in he or 731, 756, Fitzgerald, required go Nixon v. 102 she forward. Landis v. (1982). Co., 248, 254-56, North American 165-67, Thus, least, very at the absolute 81 L.Ed. 153 Only the amicus brief filed the Solicitor offers no solutions. fleetingly problem, General mentions this but it

1365 recognition may be a sub silentio of the mere run-of-the-mill This tort claim. The viola- rights of the Amendment. Howev tion through terms Seventh of civil the abuse of state er, stay great public government positions interest authorize a power has been of oppressive or in great public which is not immoderate its such Congress concern that felt consequences. necessary Id. at 57 S.Ct. at 166-67. it to enact protect section 1983 to Thus, done, balancing citizenry while there is a to be persons and to posi- hold with Jones’s, presumption power is on Ms. not Mr. tions of accountable for its abuse. Clinton’s, stays Thus, granted, side. "When are af this dispute is not a minor civil petitioner stay ter the for the assign public meets his which can one no interest be- justice ]y” showing burden of “the “heav[ and side that on presidency. the side of the departure considered, wisdom of a from the beaten therefore, balance to be is not track,” they narrowly must be tailored or completely public one sided. a There is in- terest, will amount to an of discretion. interest, abuse as well as an individual on course, justice Id. Of and wisdom of Ms. Jones’s side of the scale. These inter- account, departure that, such a will take into in weight ests are of such at provi- least case, parties sitting that one of the sionally, is the proceed. Ms. Jones is entitled to general President of the United States. See Poindexter, ly F.Supp. United States v. 732 II. (D.D.C.1990). 142, 146 Nonetheless, agree I potential I now turn to impact upon Judge with Bowman that Mr. Clinton should presidency. duties of the The dissent elo- burden, carry this initial not Ms. Jones. quently properly raises several unan- determining litiga In whether to questions, 1368-69, swered at concern- infra tion, given Ms. Jones must be the benefit of ing judicial branch interference with the concept very of civil “[t]he essence functioning presidency should this suit liberty certainly right every consists in the go Again, readily allowed forward. I protection laws, individual to claim the major admit that these are matters of con- injury.” whenever an [s]he receives Mar view, however, my cern. these concerns (1 Cranch) Madison, burg 137, 161, v. 5 U.S. greatly for interbranch interference are over- (1803) added). (emphasis L.Ed. 60 More by Mr. stated Clinton and his amicus. In-

recently, explicitly, access to the courts deed, they appreciably greater are not than has been held to be “fundamental constitu many in those faced other instances which right” tional in the Due founded Process and sitting party, interfaces as a Equal Protection clauses. Bounds v. See witness, judicial target legis- or with the Smith, 817, 828, 1491, 1498, 430 U.S. 97 S.Ct. government. Judge lative branches of the right pivotal This to Bowman notes at least three earlier instanc- system governance rights our in that “civil sitting es which Presidents have been in- § actions [such as the U.S.C. 1983 action litigation volved outside of official importance at here] issue ‘fundamental Supra duties. at 1361 & n. 10. ... in our constitutional scheme’ because past, appropriate inAlso under circum- they directly protect rights.” our most valued stances “several American Presidents (quoting Id. at at 1498 Johnson given testimony former Presidents un- have Avery, 748- judicial quasi-judicial settings.” der oath in or (1969)). 49, 21 L.Ed.2d 718 Nowak, 1 Ronald D. Rotunda & John E. Surely, rights § if civil actions are of such Treatise on Constitutional Law 7.1 at 572 (2d 1992). importance they may impeded not be or ed. Former and Presidents incarceration, submitted, delayed by person’s previously voluntarily there have either equal public involuntarily, an questions must be least interest or under Id. oath. ordinary timely so, By doing they implicitly citizen’s vindication submitted to the rule, right against her al- expressed by most fundamental common law Lord Hard- wicke, leged power by governmental public right abuse of offi- “that the has a noted, has, part, cials. As Wigmore, Ms. Jones man’s evidence” 8 John H. Evi- (John action, brought § McNaughton § a 42 not a U.S.C. dence ed. 1366 Jefferson, Monroe, 1961) Abraham Thomas James Parliamenta- (quoting 12 Cobbett’s

rev. §id. 7.1. (1942)). Ulysses S. Grant. See Lincoln and History ry of these situations I concede that most why right should any there reason Is govern- the framework of have arisen within exception the desired when suffer that I further concede operations. person mental possession of a knowledge is in the inter- perfect fit between the there is not a office of occupying at the moment the' chief proceed- play in the cited interbranch ests at of a state? executive My litigation at issue here. ings and the civil tempo- all. His is no reason at There President has obvi- point that each named is cannot override rary duties as an official encounters without ously scheduled these duty as a permanent and fundamental his cataclysmic episode in which the creating a justice. and as a debtor to citizen office been duties of the have constitutional 2370(c) original). (emphasis § at Id. compromised. President, sitting Richard Nixon was As a relatively complaint presents Ms. Jones’s actions. in at least two civil a defendant discovery litigation, uncomplicated civil one, by Supreme ordered Mr. Nixon was and should be carried out with for which can by subpoenaed produce tapes Court impact on the President’s a minimum of Nixon, prosecutor. v. special United States instance, doubtful, It is schedule. two, one, pre- perhaps face-to-face more than other, In the National L.Ed.2d between the President trial encounters Nixon, 492 Treasury Employees Union need to occur. representatives Ms. Jones’s (D.C.Cir.1974) that a the court held F.2d 587 Indeed, requirement even a there is not legal process, even is amenable to President litiga- present at the trial of civil parties be absolutely capacity, if neces in his official frequency they not. with some tion and appeal that deter sary. Mr. Nixon did not line, availability of written At the bottom mination. requests interrogatories, written for admis- stipulations undisputed sions and written Nowak, Also, by Rotunda and as noted facts, by the Federal Rules of as allowed Jimmy gave videotaped tes- Carter Procedure, would indicate that the actu- Civil pre- that was timony during presidency litigation duties of the impact al of this on the conspiracy trial of two sented at the criminal presidency, if that Mr. Clinton’s real con- Georgia officials. 1 Rotunda & state See cern, being vastly magnified, especially Later, then-sitting § Nowak 7.1 at 575. supervision assuming judge’s trial careful videotaped provided testi- President Carter litigation with maximum consideration charges mony grand jury investigating for a duties. of the President’s constitutional enlisted White House that Robert Vesco had against quash proceedings extradition aid III. Finally, still-sitting President Car- him. Id. Trooper Danny My final concern involves oath Justice

ter was interviewed under assuming, argu- Ferguson. crimi- Even sake Department investigators probing “for ment, civil, any validity nal, purposes” and administrative I advanced Mr. resulting Billy rela- claim or defense offenses Carter’s discovery staying or Libyan Id. can find no basis tions with the Government. Trooper Ferguson. Further, trial of the claims Ford was com- President Gerald private or it is testify videotape deposition in Whether citizen pelled (Squeaky) unlikely that Mr. Clinton would choose to be Lynette trial the criminal Fromme, deposition Trooper Fergu- charged attempting present at the who was with witness; sundry certainly he Id. 'at 581. son or to assassinate the President. required prej- to attend and no in which would not be numerous other instances There are voluntarily to result from his absence. likely udice is President has both directly judicial he need to be con- involuntarily appeared proceedings Neither would discovery Congress. cerned with other directed Such and before committees involved, least, although might, Trooper Ferguson it admit- Presidents instances have so, tedly, his interests. I find no Fitzgerald affect Even acts. The placed primary Court powers separation of or other constitutional prospect reliance on the that the President’s portion litiga- basis for a for this discharge of his constitutional tion, discovery especially process.2 impaired duties subject would he were damages. stated,

to suits for The Court “[bjeeause singular importance of the IV. duties, President’s energies diversion of his way downplay I no in seek to concerns the by private concern with lawsuits would raise time, outlined the dissent. At the I same unique to risks the functioning effective of Judge feel opinion reasonably that Bowman’s government.” Id. at 102 at S.Ct. 2702. through competing a fair course charts the constitutional waters and does so without energies” This argument “diversion re- injury rights to any party. serious the As only fers not to the concern with whether the stress, attempted I have nothing prohibits to President will execute his official in duties a judge halting delaying the trial from or or manner, impartial fearless and but rec- also rescheduling any proposed by any par- action ognizes that occupies the “President unique a ty any time should she find that the duties position in scheme,” the constitutional one presidency slightly imperiled. are even the that him “distinguishes from other executive understanding, With this I concur. officials.” Id. at 102 S.Ct. at 2701. II, § Article 1 of uniquely the Constitution

ROSS, Judge, dissenting. Circuit power vests the entire executive in the Presi- dent. government No other branch of respectfully I majority dissent from the single person. entrusted to a singu- It is Instead, this opinion. judg- I would affirm the larity of posi- President’s the constitutional concluding ment of the district court that the protection tion that calls for litiga- from civil dismissed, civil action should not be tion. stayed during the President’s term in office. Further, I would reverse the court’s district alleged The unofficial nature of the events allowing discovery conclusion to proceed. defending private would not make suit for my opinion, language, logic and any damages civil less of a burden on the Fitzgerald, of Nixon v. intent 457 President’s and time attention and therefore (1982), 73 L.Ed.2d S.Ct. al- responsibilities, on his any or though acts, set the context of official functioning less of a to the “risk[] effective applies equal with present force to the factu- government.” Id. at S.Ct. that, al scenario directs a here conclusion 2702. upon When President is called to exigent shown, unless circumstances can be office, during defend himself his term of

private damages against actions for wholly even actions unrelated his offi- States, though President United even responsibilities, dangers cial of intrusion stayed based on unofficial must be until authority on the and functions of the Execu- completion of the President’s term. tive Branch are both real and obvious. The Fitzgerald decision litigation

The was from burdens demands of civil can derived both functional expected impinge necessities of the Presi- be on the President’s duties, execution of discharge dent’s Article II and the of his constitutional office forc- subject principle ing no branch should energy him to divert his and attention crippling incursions another rigorous branch. from the demands his office to reasoning highly Court’s in the protecting against per- instructive the task of himself present liability. case because it demonstrates the sonal That result would disserve importance insulating public President interest substantial the Presi- disruptive private effects of suits dent’s unhindered execution of his duties him, impair whether based on official integrity or unofficial would of the role as- Any problems view, attempts by my separate that arise from ín from the issues raised Trooper Ferguson depose con- appeal. otherwise resisted, are, discovery duct from Mr. justice to exercise a common power of by Article II of the President signed to the ma stop the whole him over Constitution. at 750 n. Id. 457 U.S. chine Government.” Further, majority was con Fitzgerald (quoting Journal at 2701 S.Ct. the “sheer possibility cerned with 1890) (E. Maclay ed. Maclay 167 William makes office” of the President’s prominence (alteration Quoting Thomas original)). target for easily “an identifiable Jefferson, further under Supreme Court 752-53, 102 damages.” Id. at suits for jurisdiction exercising its concern that scored concurrence, Chief In his at 2703. opportuni create the a President would over pri possibility that Burger noted the Justice judicial upon intrusion ty unconstitutional against a President damages suits for vate authority: Executive purposes of harassment used for could be 762, 763, 102 Id. at and extortion. independent of the executive be [W]ould C.J., concurring). While (Burger, subject to judiciary, were the he of official Chief in the context stated latter, imprison- & to commands applies with Burger’s concurrence Justice disobedience; if the several ment for present case: equal force to the pillar post, to bandy him from could courts damages would suits The need to defend constantly trudging from north keep him diverting serious effect have the west, and him east to withdraw to south & from his executive of a President attention entirely duties? from his constitutional today— defending a lawsuit duties since ultimately to be frivo- found of Thomas Jeffer- (quoting even a lawsuit 10 The Id. Works expendi- 1905)). requires significant (P. lous—often ed. son 404 Ford money, many former tures of time view, powers doc- my separation of sor- have learned to their public officials actions requires private civil trine litigation processes are ... row. When unofficial acts sitting against a President they can tightly ... be not controlled term stayed during the President’s must be of extortion. Ulti- used as mechanisms President in office. Civil lawsuits on the merits does mate vindication judiciary to in- for the opportunities create repair damage. authority, set the upon the Executive’s trude C.J., (Burger, 102 S.Ct. at Id. confronta- stage potential concurring). and a tions between courts implicated in the concerns are The same justice system to be used for civil permit the well, such suits could present action as where It cannot be de- political purposes. partisan gaming merely purpose of pursued for the be conflicts potential for such is nied that the public notoriety, political partisan disruption, person- President subjecting inherent gain, potential or ex- financial unwarranted jurisdiction. ally a court’s to Indeed, potential any number of tortion. entangle claims could be contrived to private remedy majority The concludes embarrassing pro- or sitting President performance interference with the litigation, unwitnessed one- alleging tracted the demands President’s official duties extremely diffi- that are on-one encounters proceed- preparations and discovery and trial by way pretrial motion. dispose of of a cult to with the court for ings filing is motions or continu- rescheduling, time additional recognized that Fitzgerald Court also The proves If this route to sepa- ances. Ante at 1362. “rooted in the presidential unsuccessful, majority suggests the powers the Constitution.” be ration of under petition required to President should be (quoting United Id. at 102 S.Ct. at prohibition, Nixon, Court for a writ mandamus States (1974)). id., appeal any arguably then to adverse The sugges- This Supreme Court. decision to that the Framers of the Consti- Court noted however, separa- tion, clearly epitomizes the personal- tution assumed that “the President system in a inherent subject any process tion of conflict ly, to what- was not the ever_ personally subjects to put ... it For [that] would jurisdiction purpose abeyance for the the court’s until a President leaves office. private litigation. stayed The cause of action should be unless plaintiff can show that he or she will majority’s many decision leaves as irreparable injury suffer without immediate questions it unanswered as answers: Must a adjudication relief and that the immediate judicial approval President seek each time a significantly impair the suit will not the Pres- deposition or trial date scheduled interferes ability ident’s to attend to the duties performance with the of his constitutional office. appropriate duties? Is it for a court to de- cide, motion, upon important the President’s whether It is keep in mind that the perfor- the nation’s interest in the unfettered issue here is not whether the President presidential duty sufficiently required of a mance to answer claims based on unoffi- delay conduct, weighty proceedings? trial Once a cial but when. This conclusion merely defeats, delays, conflict arises between the court and the rather than the vindi- gravity plaintiffs interests, President as to the of an intrusion on cation of private legal duties, does a court have the and thus is far less plaintiff burdensome for a ignore request the President’s than the immunity recognized absolute delay proceedings? Finally, Fitzgerald. can a court dic- stayA for the duration of the tate a President’s activities as relate to President’s service in office pre- would not ultimately national and international interests of the vent obtaining Jones from an ad- creating separation judication Rather, without a United States of her staying claims. the powers majority litigation of conflict? the protect important While will public the encourage “ju- would other courts to exercise and constitutional interests the President’s management unimpaired performance duties, dicial case sensitive to the bur- while presidency,” only of the preserving plaintiffs ability dens ante at to obtain reso- stay litigation during of civil a President’s lution of his or her claims on the merits. performance Postponing adjudication term in office will ensure the private of of damage judi- rarely Executive duties unencumbered the plaintiffs ability actions will defeat a ciary thereby separation powers ultimately avoid of meaningful obtain relief. “[W]e conflicts. do well to bear in mind that the focus must simply not be on judging the matter of indi- noting separation that pow- While the of vidual conduct in setting; a fact-bound rath- ers doctrine “does not bar exercise er, Marshall, in those familiar terms of John jurisdiction of over the President of the expounding. it is a Constitution we are Con- States,” Fitzgerald, United 457 U.S. at adjudication unpalata- stitutional often bears 753-54, 102 S.Ct. at of view the fruit. system ble But the needs of a significant upon encroachment government outweigh sometimes must the independence duties and that would neces- right damages.” of individuals to collect Id. sarily accompany litigation, Fitzgerald the 758-59, C.J., (Burger, at 2706 S.Ct. that, asserting Court admonished before concurring). jurisdiction, such a court “must balance the weight litigation of the interest to be The well-known travail of and its [by litigation] against served ability the the dan- effect on the per- of the President to gers duties, subjection of intrusion oh the and func- form his as well as the jurisdiction tions of the Executive Branch.” Id. at ongoing the President to the added) (emphasis (citing 102 S.Ct. at 2703 impact and the attendant on courts 425, 443, Nixon v. separation powers, postpone- dictate the GSA (1977); non-exigent, private damages L.Ed.2d 867 United ment of Nixon, 703-13, litigation States 418 U.S. at until the President leaves office. 3105-10). my opinion, stay should include pursue urgency pretrial discovery, pro- Where there is no a suit as the trial well damages, proper for civil ceedings, discovery likely pose course is to because opportunities breaching separation avoid more intrusive and burdensome de- even powers altogether by holding litigation mands on the President’s time and attention Similarly, I trial itself. eventual than the against a stay proceedings grant a

would where, sitting of a President co-defendant circumstances, claims all given proceed cannot the co-defendant

against diminishing effective- materially

without against stay proceedings of a

ness court’s agree the district I with

President. claims here that

conclusion if the Trooper Ferguson is essential fully protected. is to be

President respect for the

ofOut position unique constitutional

and the ordinari- I the President conclude required defend himself

ly should not completion until after the actions

against civil I would Therefore office.

of his service pri- presumption to rebut

hold that should against a

vate suits service during the President’s go forward office, to demon- plaintiff should have delay will seri- convincingly both

strate plaintiffs interests

ously prejudice adjudication the suit will

that immediate abili- impair the President’s significantly Ab- duties of his office.

ty to attend to the litigation showing, should

sent such

deferred. America,

UNITED STATES

Plaintiff-Appellee, JACKSON,

Clayton R. Defendant-

Appellant. 94-10095.

No. Appeals, Court of

United States

Ninth Circuit.

Argued April 1995. and Submitted July

Decided Rehearing on Denial

As Amended 15, 1995.*

Rehearing Banc December en * suggestion recommended. Hug reject Goodwin Judge so voted Judges rehearing Gibson and en banc and

Case Details

Case Name: Paula Corbin Jones v. William J. Clinton

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 9, 1996

Citation: 72 F.3d 1354

Docket Number: 95-1050, 95-1167

Court Abbreviation: 8th Cir.