Legal Strategy Could Focus on Immunity : Law: Clinton’s lawyer may argue that President cannot be sued for actions that may have occurred before taking office. Experts see lack of precedents.

Can a President be sued for something he did before he was elected?

President Clinton’s new lawyer, Robert S. Bennett, appears to be laying the groundwork for a legal argument that a sitting President cannot be sued for actions that may have occurred before taking office.

But other legal experts said Bennett will have a hard time finding a precedent in law for the claim that the President is immune from civil suits arising from his pre-White House days.

“If you permit the President of the United States to be sued and permit the case to go forward, . . . think of the consequences,” Bennett said Friday at a press conference called to blast the $700,000 civil rights and defamation case against Clinton filed by Paula Corbin Jones.

“I suppose every prisoner in an Arkansas jail who has been denied a pardon could file a suit against the President and when a lawyer tried to throw it out, he could say: ‘Well, I want to have some pretrial discovery. Let’s take some depositions.’

“I mean, your President would be tied down for 365 days a year being asked questions by lawyers and there is something wrong with that.”

He added that courts have clearly ruled that to prevent a paralysis of the presidency and to avoid harassment of the officeholder by frivolous lawsuits, a President cannot be sued for official acts while in office.

But legal experts questioned whether Bennett’s attempt to expand the legal doctrine of presidential immunity to include acts performed before assuming office would hold up. The question has never been tested in court.

Herbert J. Miller Jr., who represented former President Richard Nixon in a civil suit brought by a whistle-blower, said the Supreme Court in that case (Nixon vs. Fitzgerald) unambiguously stated that a President was immune from civil suits arising from his official duties.

“Bennett could argue that some of the concepts discussed by the court--namely that the President should decide issues of the nation and not be subjected to suits for damages--could support an argument that a sitting President should be immune to actions arising from acts before his presidency,” Miller said. “But that is not the holding of this case.”

Members of Congress and judges are protected from civil damage suits over their official acts and statements, but they have no such immunity from claims over non-official activities.

No public official is protected from criminal charges for actions in or out of office, as former Vice President Spiro T. Agnew and numerous others have learned.

Attorney William Kilberg, of the Washington office of the Los Angeles law firm Gibson, Dunn & Crutcher, said Bennett’s chief fear is that the case will proceed to the discovery stage, which Bennett himself said could open “a Pandora’s box” of unrelated allegations.

“What Bennett is doing is what any good lawyer would do--maybe doing it better--which is to accuse the accuser and to try to get (the suit) dismissed before any discovery goes forward,” said Kilberg, who was solicitor general in the Labor Department during the Gerald R. Ford Administration.

“What he hopes to avoid is discovery, which could produce the Anita Hill syndrome, when others will come forward and authenticate enough of her (Jones’) story to lend credibility to those allegations that only she and the President know are true or not.”