LAW : Clinton’s Immunity Bid in Jones Suit Could Backfire

By trying to shield himself from embarrassment in the Paula Jones sexual harassment case, President Clinton may be steering his presidency into a new storm of constitutional controversy.

Scholars disagree on the merits of the claim--filed recently in federal court--that a sitting President is immune from the kind of lawsuit filed in the Jones case. But whether Clinton wins or loses that legal argument, analysts warn that he could suffer severe political damage by elevating the suit’s allegations of sexual misconduct to a matter of high principle.

“In a very narrow sense, the President is better off if he can delay going through a very sleazy legal proceeding,” said Johns Hopkins University political scientist Ben Ginsberg. “But by creating a constitutional argument, he makes legitimate a debate which otherwise might be dismissed as too sordid.”

Some fellow Democrats view Clinton’s claim of immunity as a questionable attempt to make the best out of a difficult predicament. But, said Democratic consultant Ted Van Dyk, who once recruited Clinton as a coordinator in the 1972 George S. McGovern campaign, “whatever they (Clinton and his advisers) do hurts. . . . It’s damaging to take the position that the President is above the law.”

To many critics, any claim of special presidential privilege seems inconsistent coming from Clinton, who has pledged time and again to “play by the rules” of middle-class Americans. “It fits with the overall image problem he has that the rules just don’t apply to him and his cronies,” said David Mason of the Heritage Foundation, a conservative think tank.

The tradition of Clinton’s own party further complicates his position in the Jones case. From Watergate to Iran-Contra, the Democratic Party has aggressively challenged claims to special privilege advanced for the presidency.

For Clinton to claim immunity now is “like sending out the message that he wants to further imperialize the presidency,” said Richard Williamson, former Ronald Reagan White House aide.

Meanwhile, Clinton’s decision to claim immunity has given new ammunition to his critics.

“I find the (Jones) lawsuit and everything about it distasteful, to the extent that I couldn’t bring myself to read it,” said Harvard University law professor Charles Fried, who was solicitor general under Reagan. But about the constitutional issue, “it’s my obligation to read about it,” said Fried, who contends that an immunity claim for Clinton would be “simply without constitutional warrant.”

“A claim of immunity raises the question of whether a President, by moving into the cocoon of the White House, is protected from issues that other citizens are held accountable for,” said Charles Jones of the Brookings Institution. “And that’s a very big question.”

Jones’ suit stems from an alleged 1991 encounter in a Little Rock, Ark., hotel. According to Jones, then a state employee, then-Gov. Clinton asked her to perform oral sex on him. Jones says that she refused and that her career suffered as a result.

But the issues raised by the immunity argument favored by Clinton’s attorney, Washington lawyer Robert S. Bennett, reach back to the birth of the republic, touching on one of the most sensitive issues that worried the citizenry--the boundaries of power and privilege for the newly created office of President.

To reassure his fellow Americans, Alexander Hamilton contrasted the status of the President with that of Britain’s monarch. “The one would be amenable to personal punishment and disgrace,” Hamilton wrote of the President. “The person of the other,” he said of the king, “is sacred and inviolable.”

That distinction retains political and legal resonance today. “There is a legitimate concern about overburdening an incumbent President when he is in office,” said David Keene, chairman of the American Conservative Union. “On the other hand, if the President is just the first citizen of the land instead of the first potentate, you can make a good logical argument that he shouldn’t be given special treatment for transgressions that he might have committed.”

About all that legal authorities agree on is that a claim of immunity for Clinton in this case would break new constitutional ground.