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Clinton V. Jones: the King Has No Clothes (Nor Absolute Immunity to Boot)

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Clinton V. Jones: the King Has No Clothes (Nor Absolute Immunity to Boot) Volume 100 Issue 2 Article 10 December 1997 Clinton v. Jones: The King Has No Clothes (Nor Absolute Immunity to Boot) Christopher James Sears West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Common Law Commons, Constitutional Law Commons, and the United States History Commons Recommended Citation Christopher J. Sears, Clinton v. Jones: The King Has No Clothes (Nor Absolute Immunity to Boot), 100 W. Va. L. Rev. (1997). Available at: https://researchrepository.wvu.edu/wvlr/vol100/iss2/10 This Student Work is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Sears: Clinton v. Jones: The King Has No Clothes (Nor Absolute Immunity CLINTON v. JONES: THE KING HAS NO CLOTHES (NOR ABSOLUTE IMMUNITY TO BOOT) I. INTRODUCTION .......................................... 494 II. BACKGROUND OF THE LAW ................................. 497 A. Common Law Foundationand Framers'Intent .......... 497 B. The Supreme Court's Exercise of Authority Over the Executive Branch .................................. 498 C. The Doctrine of Executive Immunity ................... 506 1. Absolute Immunity .......................... 506 2. Qualified Immunity .......................... 508 D. Absolute Immunity for the President:Nixon v. Fitzgerald .. 510 III. STATEMENT OF THE CASE .................................. 511 IV. THE DECISION ........................................... 515 A. Question One: Can A King Run Naked? ................ 515 1. The King Cannot Use Precedent As A Corset ..... 516 2. The Historical Record Lacks A Common Thread .. 517 3. The Judiciary Has the Authority to Rain on the King's Parade ......................... 519 B. Question Two: Can the Court Establish a Clothing-Free Area? ........................................... 523 C. Dispositionof the Case: Hangingthe King Out to Dry .... 525 D. The Concurrence: Reviving the King's Constitutional Tailors .......................................... 525 V. ANALYSIS .............................................. 527 A. PresumptiveAmenability ............................ 527 B. Defining the Scope of the Outer-perimeterof Presidential Duty ............................................ 529 C. The MoralImperative ofPresidential Accountability ...... 531 VI. CONCLUSION ............................................ 534 Disseminated by The Research Repository @ WVU, 1997 1 West Virginia Law Review, Vol. 100, Iss. 2 [1997], Art. 10 WEST VIRGINIA LAW REVIEW [Vol. 100:493 "No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor."' I. INTRODUCTION In the classic children's tale, The Emperor'sNew Clothes,2 Hans Christian Andersen tells the story of a King whose presumed inviolability is desecrated by a village boy when the boy cries out, "The King has no clothes!"3 Taken in view of the rights of an English monarch as early as the thirteenth century, the boy's statement in Andersen's story could well have been tantamount to a treasonous attack on the King's sovereignty. Although, by the seventeenth century, the development of the rights and liberties of the English people were conclusive in determining the end of "the divine right of Kings," the maxim that "the King can I President Theodore Roosevelt, Third Annual Message (Dec. 7, 1903) quoted in JUSTIN KAPLAN, BARTLr's FAMILIAR QUOTATIONS 576 (1992). 2 HANS CHRISTIAN ANDERSON, EVENTYR OG HISTORIER 96-101 (1955). 3 The original Danish quote was as follows: >>Men han bar jo ikke noget ptl<< HANS CHRISTIAN ANDERSON, EVENTYR O HISTORIER 100 (1955). 4 By the early 13th Century, the English King, the lord and sovereign, "was not subject to the enforcement of the law or the judicial process." R. Brent Walton, Comment, We're No Angels: Paula Corbin Jones v. William Jefferson Clinton, 71 TuL. L. Rnv. 897, 902 (1997) (citing Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1, 5-6 n.15 (1963)). Furthermore, the notion that "'the King can do no wrong"' was rooted in "'the divine right of Kings."' Jones v. Clinton, 869 F. Supp. 690, 693 n.1 (E.D. Ark. 1994), afJ'd in part,rev'd in part, 72 F.3d 1354 (8th Cir. 1996), cert. granted, 116 S. Ct. 2545 (1996), aff'd and rem'd 117 S. Ct. 1636 (1997), 974 F. Supp. 712 (1997). Moreover, deeply imbedded in the aphorism that "the King can do no wrong" was the belief that the King was incapable of doing or thinking wrong: "[H]e can never mean to do an improper thing; in him is no folly or weakness." Id. at 693 n.1 (citing WILLIAM BLACKSTONE, COMMENTARIES ON TIE LAWS OF ENGLAND 246 (Chitty ed., 1855)). See Jones 869 F. Supp. at 693 n.1. https://researchrepository.wvu.edu/wvlr/vol100/iss2/10 2 Sears: Clinton v. Jones: The King Has No Clothes (Nor Absolute Immunity 1997] CLINTON v. JONES do no wrong" survived.6 In fact, this concept of kingship persists to the present day and grants the Queen of England an absolute immunity from personal civil suits.7 The United States inherited the rights and liberties of the English people when the nation's Founding Fathers adopted certain concepts embodied in the Magna Carta, the Petition of Right, Habeas Corpus, and the English Bill of Rights.8 However, no sovereign monarch reigns over the citizens of the United States;9 rather, the nation is governed by a tripartite government with the executive power vested in a president who is subject to election at fixed terms."0 Moreover, the United States Constitution is silent on the issue of presidential immunity" and the Framers of the Constitution did not provide consistent authority on the matter." Thus, the question arises: Does the President of the United States possess an "official inviolability" that grants him absolute immunity from being sued for personal torts in the civil courts? Alternatively, the question may be posed using a literary allusion: Can a mere citizen cry out, "The President has no clothes!"? In a decision that reinforces the principle of judicial review and tests the limits of the separation of powers, the United States Supreme Court addresses the 6 This adage represents two fundamental principles: (1) any exceptionable conduct that occurs during the course of public affairs is not to be imputed to the King; and (2) by the very nature of the crown, the prerogative of the King cannot be exerted to do any injury to the people. See Jones, 869 F. Supp. at 693 n. 1 (citing WILLiAM BLACKSTONE, COMMENTARES ON THE LAWS OF ENGLAND 246 (Chitty ed., 1855)). 7 See Jones, 869 F. Supp. at 693 n.1 (citing R.J. Gray, Private Wrongs ofPublic Servants, 47 CAL. L. REv. 303, 307 (1959)). The Queen's immunity is guaranteed by the Crown Proceedings Act of 1947. See Laurie W. Beaupre, Note, Birth of a Third Immunity? PresidentBill Clinton Secures Temporary Immunity From Trial, 36 B.C. L. REV. 725,729 (1995). Although the Queen enjoys immunity, the Royal Monarchs of Great Britain have traditionally made themselves amenable to suit through a Petition of Right. In this way, royal amenability to suit in England is similar to the doctrine of sovereign immunity in the United States. See id. See Jones, 869 F. Supp. at 693 n.1. 9 See Jones v. Clinton, 72 F.3d 1354, 1358 (8th Cir. 1996), cert. granted, 116 S. Ct. 2545 (1996), affd and rem'd 117 S. Ct. 1636 (1997) (citing U.S. CONST. art. II). 10 See Jones, 869 F. Supp. at 694 n.2 (citing RussELL KIRK, TE ROOTS OF AMERICAN ORDER 427-428 (1974)). 11 See id. at 694 (noting that the Constitution does not address the immunity question). 12 The Supreme Court noted that the historical evidence proffered by Mr. Clinton shed little light on the issue under consideration and was largely canceled by conflicting evidence also consistent with the underlying principles of presidential immunity. See Clinton v. Jones, 117 S.Ct. 1636, 1638 (1997). Disseminated by The Research Repository @ WVU, 1997 3 West Virginia Law Review, Vol. 100, Iss. 2 [1997], Art. 10 WEST VIRGINIA LAW REVIEW [Vol. 100:493 issue of presidential inviolability in Clinton v. Jones."3 Decided in the form of a response to questions presented in a certioraripetition, Clinton stands for three propositions that will have a profound effect on the "official inviolability" of the President of the United States: (1) in all but the most exceptional circumstances, the United States Constitution does not grant the President temporary immunity from personal civil suits that arise out of events preceding the President's term in office; (2) under the doctrine of separation of powers, the federal courts are not required to suspend private civil actions against the Chief Executive until he leaves the presidency; and (3) it is an abuse of a district court's discretion to defer trial of a 1 4 private action until after the President leaves office. The Supreme Court's holding in Clinton places a significant limitation on the presumed inviolability of the President. The President may no longer attempt to avoid accountability for unofficial conduct by hiding behind the constitutional cloak of the Presidency. 6 The Court's decision in Clinton is not only a victory for the plaintiff, but it is a triumph for the Republic as well: citizens who have been injured by the private acts of public servants are guaranteed the right to resort to the laws of the land for a remedy. 7 The purpose of this Comment is to explore why the President, along with other public servants, must be subject to the laws of the land. First, this Comment examines the derivation and scope of executive immunity.
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