The University of Chicago Magazine

February 1997


Witnesses forthe Constitution

Provost Geoffrey Stone, JD'71, 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 Paula Jones's filing of a sexual-harassment suit: Can the president be compelled to go through the legal process of a personal-action suit while he is in office?

Stone and Strauss, both experts in constitutional law, were asked in May to write the president's brief for the Court. The oral arguments began on January 13, and a decision is expected this spring.

"The issue," says Stone, "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 defines the issue in specific terms: "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.

"Our argument is that, except in extraordinary cases, the president should not have to defend a lawsuit while in office." For one thing, Strauss says, he should spend his time on the nation's problems, not a private lawsuit. Second, if people can sue a sitting president, he or she would be an easy target for people who had no legitimate claim but might sue to harass or to gain publicity.

"Third, the courts--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 they'd inevitably be in if such suits are allowed," says Strauss.

While this is the first time such an issue has arisen, Stone notes that Thomas Jefferson anticipated it, writing: "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?"

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