Death of American Virtue - Ken Gormley [148]
Dellinger was a lawyer’s lawyer. He subscribed to the lesson of U.S. v. Nixon—the 1974 Watergate tapes case—that “not even the president should be above the law.” But to extend that principle to every slip-and-fall case, and every two-bit lawsuit would paralyze the country. He believed the president should be immune from civil suit until he left office.
Many Court-watchers agreed with Dellinger, giving odds to President Clinton in Clinton v. Jones. After one mock argument held at the Institute for the Bill of Rights in Williamsburg, a group of prominent law professors and journalists took a straw poll, voting two-to-one that the president would prevail in the Jones case. But there were conflicting signals that were starting to make Dellinger uncomfortable. By 1997, the notion of presidential supremacy was on a downhill slide. In part due to the end of the Cold War, the idea that the president needed to be freed of all distractions and given absolute deference in order to guard against nuclear attacks and enemies abroad seemed passé. The days of chief executives reigning supreme in Washington were slowly vanishing. Ironically, the Whitewater scandal itself had contributed to the president’s diminution of power. Bill Clinton had already answered questions from Independent Counsels Fiske and Starr on multiple occasions; he had testified under oath in the Tucker-McDougal trial. What was one more distraction in a scandal-ridden presidency?
Several weeks before the oral argument, Dellinger spent nearly three hours in a grueling moot-court exercise with top lawyers at the Justice Department. “I argued until I was drenched with sweat,” he recalled, “and did not believe that I had persuaded them.” Dellinger was so troubled that he immediately went back to his office “and asked my assistant to have a car come take me to the White House.” He first met with White House Counsel Jack Quinn, informing Quinn that he felt that the case should be settled.
The fact that Robert Bork and Ted Olson were prepping Paula Jones’s lawyer for battle made the situation even more worrisome. These were not men who ordinarily handled sex discrimination cases pro bono. This confirmed Dellinger’s suspicions that “the normal incentive structures that we have to keep civil litigation in check don’t apply when the litigation is against the president.” Busily at work were powerful forces and individuals who “would like to destabilize, who would have enormous amounts to gain by destabilizing his presidency.”
If Clinton lost this battle in the High Court, depositions and subpoenas would start to fly. “The normal incentive is not to do excessive discovery,” explained Dellinger. In an ordinary case, the costs alone would prevent this. In the current situation, however, where a sitting political leader could be crippled and another political party could gain power, “those constraints simply don’t operate.” Dellinger implored the president’s top White House advisers to settle quickly and cut Bill Clinton’s losses.
“That just didn’t happen,” Dellinger later said, with a quiet sigh.
JUST days before the oral argument in the Supreme Court, the Jones lawyers received a huge boost, without even knowing it. Joe Cammarata sat in his office staring at a phone message slip that seemed particularly odd. As Cammarata remembered it: “The receptionist says, ‘Some woman wants to talk to you. It’s important.’ I said, ‘Tell her I’ll call her back.’” The receptionist said that the woman would not leave her name and number but she insisted she ‘really needs to talk to you.’” The same woman had called repeatedly. Finally, Cammarata took the call to rid himself of the nuisance.
The mystery caller on the other end spoke in a soft voice. She told Cammarata, “I had a similar thing happen to me that happened to Paula Jones.” There was silence. The unidentified woman proceeded to tell a story about “how she was groped, grabbed in the little room adjoining the Oval Office.” Cammarata asked, “Well, how come the Secret Service weren’t around?” He additionally pressed