Document Type

Article

Comments

"Executive Privileges and Immunities: The Nixon and Clinton Cases," 108 Harv. L. Rev. 701 (with Neal Kumar Katyal) (1995)

Abstract

In 1978, Ernest Fitzgerald sued Richard Nixon, and in 1994, Paula Jones sued Bill Clinton. In a landmark but closely divided 1982 opinion, Nixon v. Fitzgerald, the Supreme Court sided with Nixon and against Fitzgerald. What does this mean for Jones and Clinton today? Ed Meese speaks for many when he insists that Nixon protects Presidents only for presidential conduct and that extending immunity to Clinton's pre-presidential conduct would be a huge and unprincipled stretch that would place Bill Clinton above the law. Other com- mentators aren't so sure that Nixon itself was rightly decided but are sure that Clinton's claim is much weaker. Terry Eastland has argued that, if you reject Nixon's immunity claim, you presumably must reject Clinton's a fortiori. We will show that all of this is dead wrong. Bill Clinton's claim for immunity is actually much stronger than Richard Nixon's - supported by crisper arguments from constitutional text and structure, by more historical evidence from the Founding and early Republic, and by better modern-day policy arguments. Nixon sought absolute and permanent immunity from a civil damage action after he left office; Clinton seeks only temporary immunity from litigating a civil damage suit while he serves as President. We will show that the Arrest Clause of Article I, Section 6 and the democratic structural principles underly- ing this Clause cast light on Article II, and provide a sturdy constitutional basis for temporary presidential immunity. In the process of elaborating the best argument for Clinton, we will also show how all nine Justices in Nixon missed the point and in particular misread a key quote from the great Justice Joseph Story. We will outline a new theory of limited executive immunity that protects a sitting President and (most importantly) the American people he serves, yet does not put the President above the law, as Nixon did, despite the Court's protestations to the contrary.

Date of Authorship for this Version

1995

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