Although a sitting president has immunity from litigation arising
from actions performed in his official capacity, that immunity does not
extend to actions arising from his private conduct nor does it allow him
to postpone litigation while he is in office.
The issue of executive privilege took front stage when President
William Jefferson Clinton was sued for actions alleged to have occurred
before he was president. Paula Jones filed a civil suit in 1994,
alleging that President Clinton propositioned her in a Little Rock hotel
room three years earlier, when he was governor of Arkansas and she was a
low-level state employee. She sought damages for "willful, outrageous,
and malicious conduct" arising from the allegations of sexual harassment
and sexual assault.
Clinton's attorneys argued that the trial should be postponed while
Clinton was in office because the litigation would distract him from his
presidential duties. In December 1994, a federal district court judge
ruled that a trial could not take place while Clinton was in office
because of the potential interference with official duties. The United
States Court of Appeals for the Eighth Circuit reversed the lower court
Clinton appealed to the United States Supreme Court. The Court agreed
to hear the case to decide whether civil litigation against an
incumbent president must in all but exceptional cases be delayed until
after he leaves office. Clinton's legal team raised two main arguments
in support of its position that the case should be postponed. First,
they argued that constitutional immunity for a president's official
actions extends to his unofficial conduct. Second, they argued that the
separation of powers doctrine, which ensures that none of the three
branches of government infringes on another, forbids a trial judge to
force a sitting president to defend himself in a lawsuit.
The Court rejected both of Clinton's arguments. In a 9 to 0 decision
in May 1997, the Court ruled that Jones could move forward with her
sexual harassment lawsuit because nothing in the Constitution allows a
sitting president to postpone a private civil damages lawsuit while he
is in office. The Court thought it was unlikely the case would burden
Clinton's time. Without commenting on the merits of Jones case, the
Court said Jones is entitled to her day in court.
A majority of the Court was un-persuaded by the concern that a
failure to postpone private litigation would be an invitation to
excessive litigation. They rejected the notion that "our decision will
generate a large volume of politically motivated harassing and frivolous
litigation." Writing for the Court, Justice Stevens said: "If the past
is any indicator, it seems unlikely that a deluge of ... litigation will
ever engulf the Presidency." The opinion noted that only three sitting
presidents—Theodore Roosevelt, Harry Truman, and John F. Kennedy—had
been defendants in civil litigation involving their actions prior to
taking office and those cases were all either quickly dismissed or
Only Justice Breyer wrote a separate concurring opinion to express
his concerns about a president being subjected to harassing litigation.
"[P]redicting the future is difficult, and I am skeptical," he said.
Questions for Consideration
Many commentators discuss the increasing litigiousness (willingness
to sue) in American society. If Americans today are more likely to sue,
is the Court correct in dismissing concerns that a sitting president may
be tied up in litigation that interferes with his duties? (In tackling
this issue, research the impact that Paula Jones' allegations had during
The Court was in part motivated by a concern for the injured
plaintiff's rights. What might be the consequence if a person whose
injuries were caused by a president had to wait four or even eight years
before having her day in court?
View the entire opinion in Clinton v. Jones.