The Nine [65]
The legal issue before the justices was Bennett’s argument that the magnitude of Clinton’s duties as president entitled him to a stay of all proceedings in the Jones case, including discovery and depositions, until he left office. Or, as Bennett told the justices, “The President of the United States should not be subject to litigation, either at trial or in discovery. Unless there is some compelling necessity, he should not be taken away from his constitutional duties.”
At oral argument, the justices were all over Bennett. Rehnquist said the case had nothing to do with Clinton’s “official powers as president.” Ginsburg made the same point, that the subject of the lawsuit was “conduct unrelated to his office.” Souter said he thought that, at a minimum, discovery unrelated to the presidency should proceed.
Stevens asked, “How long do you think it will take to try this case?”
“It’s impossible to say,” Bennett answered, more prophetically than he knew. “I can tell you the president has spent, personally spent, a substantial amount of time on this case already. The very nature of this case is so personal that it would require his heavy involvement.”
Scalia usually embraced expansive claims of executive power, but not this time. There was no way, he asserted, that Clinton was so busy. “We see presidents riding horseback, chopping firewood, fishing for stick fish—”
The audience chuckled.
“—playing golf and so forth and so on. Why can’t we leave it to the point where, if and when a court tells a president to be there or he’s going to lose his case, and if and when a president has the intestinal fortitude to say, I am absolutely too busy—so that he’ll never be seen playing golf for the rest of his administration—if and when that happens, we can…we can resolve the problem.”
For Clinton, the timing of the argument couldn’t have been worse. After a desultory campaign by Bob Dole, the Republican nominee, Clinton had just won a solid but hardly overwhelming reelection. In the final days of the campaign, a putative scandal regarding Clinton’s fund-raising practices had preempted any post-election honeymoon Clinton might have enjoyed. In January 1997, the Jones case looked like a convenient vehicle for the justices to take Clinton down a peg, but the controversy was not yet a major threat to his presidency and a constitutional crisis for the nation. As for Clinton himself, he nursed a measure of paranoia about Rehnquist and his role in the Jones case. The swearing-in at his second inauguration took place just seven days after the oral argument in Clintonv. Jones. Clinton told friends that the chief justice shook his hand and said, “Good luck—you’ll need it.” The president took the gesture as vaguely menacing.
A veiled threat hardly seemed like Rehnquist’s style, but it was true that the Court at that moment was preparing to demolish Clinton’s legal position in the case. As usual for the Rehnquist Court, the tenor of the oral argument turned out to be indicative of the result. On May 27, 1997, the Court ruled unanimously that Clinton could not postpone the lawsuit until he left office. Stevens’s opinion for the Court in Clinton v. Jones reflected the commendable principle that no man should be above the law, but it also showed a stunning naiveté about contemporary law and politics. Stevens dismissed Clinton’s concerns that the Jones case would represent much of a burden in the conduct of his presidency. “It appears to us highly unlikely,” Stevens wrote in an epically incorrect prediction, “to occupy any substantial amount of [Clinton’s] time.”
As a result of the Supreme Court’s ruling, seven months later, on January 17, 1998, Clinton was forced to answer the questions of Jones’s attorneys at a sworn deposition that took place in Bennett’s office, a few blocks from the White House. The Court was usually pretty savvy about how its decisions would play out in the real world. But Stevens, who was nearing his eightieth birthday cloistered from the hubbub of life in the age of cable news,