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 decision.

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 settled.

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

  1. 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 Clinton presidency.)

  2. 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.