The Paradox of Clinton Winning and the Presidency Losing

Political Science Quarterly

Volumn 114, Issue 4, 1999, Pages 569-593

  Pious, Richard M ^a  

^a Barnard College of Columbia University   (United States)

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[No Author keywords available]

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EID: 0346995788     PISSN: 00323195     EISSN: None     Source Type: Journal    
DOI: 10.2307/2657784     Document Type: Article

References (56)

1. See Richard Pious, The American Presidency (New York: Basic Books, 1979), 47-84.
2. Nixon v. Fitzgerald, 457 U.S. 731 (1982).
3. Butz v. Economou, 438 U.S. 478 (1978). (Emphasis added.)
4. Clinton v. Jones, 520 U.S. 681 (1997).
5. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
6. The dissent by Justice Byron White in Nixon v. Fitzgerald, 457 U.S. 731 at 762-800, pointed out that absolute immunity for other officials under Economou extends only to narrow functions and not to the outer reaches of their office. The scope of immunity, White went on, should be determined by the function performed and not by the office held. Dismissal of officials is not a presidential function that should be immune from suit - particularly when the official involved was helping Congress perform its legislative function.
7. Jones v. Clinton, 869 F. Supp. 690 (1994). Prior to Clinton, only three presidents (Theodore Roosevelt, Harry Truman, and John Kennedy) had been sued for actions occurring before they entered office, and these cases had been resolved before trial, shortly after the presidents were inaugurated.
8. Jones v. Clinton, 869 F. Supp. 690 (1994).
9. Ibid., at 698.
10. "Memorandum in Support of Clinton's Motion to Dismiss on Grounds of Presidential Immunity."
11. Jones v. Clinton, 72 F. 3d 1354 (8th Cir., 1997).
12. Robert Bork, "Clinton, Out of Reach," New York Times, 3 February 1999.
13. Hamilton argues in The Federalist, No. 65, that impeachment must precede a trial.
14. Federalism issues are also at stake. Could a state prosecution be permitted? Most commentators argue that the president is a national official elected by the entire nation, who cannot be held hostage to a locality or state's powers. See McCulloch v. Maryland, 4 Wheat. 315 (1819).
15. U.S. v. Isaacs, 493 F. 2d 1124 (1974).
16. Mississippi v. Johnson, 4 Wall 475 (1867). In oral argument in United States v. Nixon, James D. St. Clair, Nixon's attorney, stated that the language demonstrated the intent of the Framers to require removal prior to indictment. "It is hardly reasonable or sensible to consider the President subject to such prosecutions."
17. Langford v. United States, 101 U.S. 341 (1879), at 343.
18. Department of Justice, "Brief of Robert Bork, Solicitor General, 1973."
19. Brian Kalt, "Pardon Me? The Constitutional Case against Presidential Self-Pardons" Yale Law Journal 106 (1996): 779-809.
20. Joel B. Grossman and David Yalof, "The 'Public' versus the 'Private' President: Striking a Balance Between Presidential Responsibilities and Immunities," Presidential Studies Quarterly 28 (Fall 1998): at 830.
21. 5 U.S.C. Sec. 552(b)(5) (1994).
22. U.S. v. Nixon, 418 U.S. 683 (1974).
23. Barenblatt v. U.S., 360 U.S. 109 (1959).
24. Senate Election Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (1974).
25. In re Sealed Case (1997) 121 F. 3d. 729 (D.C. Cir. 1997), at 748-752.
26. Transcripts from Legal Times, 15 June 1998, 8-9.
27. Mark Rozell, "Executive Privilege in the Lewinsky Scandal: Giving a Good Doctrine a Bad Name," Presidential Studies Quarterly 28 (Fall 1998): 816-820.
28. Natta v. Hogan, 392 F. 2d 686 (10th Cir, 1968).
29. United States v. Bryan, 339 U.S. 323 at 331 (1950); Elkins v. United States, 364 U.S. 206 at 324 (1960); United States v. Nixon, 418 U.S. 683 at 710.
30. In re Sealed Case (Espy), 121 F. 3d 729 at 757-758.
31. United States v. Clinton, 118 S. Ct. 2079 (1998).
32. In re: Bruce R. Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (USDC, 1998).
33. Ibid., at 1271, citing 28 U.S.C. see 594(a).
34. In a related Whitewater decision, the 8th Circuit Court of Appeals pointed out that "to allow any part of the federal government to use its in-house attorneys as a shield against the production of information relevant to a federal criminal investigation would represent a gross misuse of public assets." In re Grand Jury Subpoena Duces Tecum, 112 F. 3d 910 at 921 (8th Cir. 1997).
35. In re: Bruce R. Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (USDC, 1998), at 1277. (Emphasis in original.)
36. Ibid., at 1278.
37. In re Grand Jury, 112 F. 3d 910 (1997).
38. In re Sealed Case, Nos. 95ms00446, 95 ms00447, June 25, 1998, District Court for the District of Columbia, June 25, 1998 (sealed).
39. In re Sealed Case, 124 F. 3d, 230 (1997).
40. Swidler v. Berlin, 118 S. Ct. 2081 (1998).
41. George Bush letter to Lewis Merletti, 15 April 1998.
42. "Declaration of Lewis Merletti," 12.
43. Ibid., 27.
44. 28 USC Sec. 535(b).
45. 28 USC sec. 594. Also sec. 535(b)(1), provides that "any information, allegation, or complaint received in a department or agency of the executive branch of the Government relating to violations of title 18 involving Government officers and employees shall be expeditiously reported to the attorney general, unless the responsibility to perform an investigation with respect thereto is specifically assigned otherwise by another provision of law."
46. In re Sealed Case, No. 98 ms00148, May 22, 1998; quoting U.S. v. Nixon, 418 U.S. 683 (1974) at 708.
47. Ibid.
48. In re Sealed Case, 148 F. 3d 1073 (D.C. Circuit, 1998).
49. Ibid.
50. Rubin v. U.S., 119 S. Ct. 1 (1998).
51. Rubin v. U.S., 119 S. Ct. 461 (1998).
52. Branzburg v. Hayes, 408 U.S. 665 (1972).
53. Excerpts from The New York Times, 13 April 1999.
54. See Ex Parte Milligan, 71 U.S. 2 (1867), in which the Supreme Court's lecture to Abraham Lincoln on the limits of martial law took place a year after the Civil War was ended and Lincoln was already dead. By waiting until the Jones case had been settled, however, Wright may have exceeded her powers under Rule 37(b)(2), which provides for civil contempt only so long as "the action is pending." Since the action has been settled, it could be argued on appeal that only a criminal contempt citation is a valid punishment.
55. Judicial Watch, Inc. v. Hillary Rodham Clinton, et al., 76 F 3rd. 1252 (1996).
56. Kathleen Clark, "Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways Government Officials Pay Their Lawyers" Stanford Law Review 50 (November 1997): 65-138.