An alleged 1991 encounter between Paula Corbin Jones, an Arkansas state employee, and then-Governor Bill Clinton in a Little Rock hotel room, may seem an unlikely starting point for constitutional litigation of great moment. Yet when Ms. Jones sued Mr. Clinton in 1994 to rebut press reports that they had engaged in a sexual relationship, Mr. Clinton responded with an assertion that the President's unique role under the Constitution requires that he be deemed "temporarily immune" from civil suit so long as he served as President -- even for plainly unofficial acts, committed before he became President. When the Eighth Circuit Court of Appeals disagreed with this argument, Mr. Clinton sought certiorari review, and the Supreme Court agreed to hear the case in its October 1996 term.

Mr. Clinton has already succeeded in obtaining crucial tactical relief: thanks to the Supreme Court's decision to hear the case, he will not need to respond under oath to Ms. Jones' allegations until after the November 1996 election. Indeed, there is a substantial chance that the Supreme Court will never rule on the merits of the petition. If Mr. Clinton loses the election, for example, his case may well be deemed moot. But in any event, Clinton v. Jones is unlikely to lead to a great expansion of presidential immunity.

In his certiorari petition, Mr. Clinton describes the immunity he seeks as "modest" and "limited," merely requiring that suits against him be postponed "until he leaves office." Petition at 9. This immunity has no explicit basis in the constitutional text but must be implied, he asserts, because the mere pendency of lawsuits will "impos[e] on his capacity to carry out his constitutional responsibilities." Id. Even were a court to schedule discovery and hearings with extreme deference to the President's schedule, the constitutional problems would remain because, according to Mr. Clinton, that would give "a trial court the general power to set priorities for the President's time and energies." Id. at 8.

Mr. Clinton's immunity argument is policy-driven, but so is much of the Supreme Court's jurisprudence in the immunity area. In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the Supreme Court (over strong dissents) recognized an absolute presidential immunity for official acts, largely for policy reasons. 457 U.S. at 756. The Court was concerned that the absence of presidential immunity for official acts "could distract a President from his public duties, to the detriment not only of the President and his office but also the Nation that the Presidency was designed to serve." Id. at 753. In crafting presidential immunity, however, the Court applied those principles that had guided it in fashioning rules of immunity for other government officials. Judges and prosecutors, for example, had been afforded absolute immunity at common law for their official acts, precisely because in the absence of immunity such officials will not be able to carry out their functions, for fear that each official decision will result in liability. Society benefits when judges and prosecutors perform their jobs, and that benefit outweighs the value ordinarily given to affording each citizen a remedy. Id. at 746-47. Although there was of course no precise common law model for the office of President, the Court readily found that the President's functions were sufficiently varied, sensitive and important that the Presidency should be afforded a similar immunity. The Court emphasized that the scope of immunity "must be related closely to the immunity's justifying purposes," and that presidential immunity extended no further than "acts within the `outer perimeter' of [the President's] official responsibility." Id. at 755-56.

The Court in Fitzgerald thus based its recognition of presidential immunity on common law principles that granted immunity for certain important and sensitive official functions; and then limited the scope of immunity by tying it tightly to the necessity to protect those functions. Mr. Clinton attempts to separate these two elements of the Court's decision in Fitzgerald, by arguing that Fitzgerald justifies immunity when either official decisionmaking needs protection from suit, or the threat of litigation would be distracting. Petition at 10.

The reasoning and careful language of both the majority and the dissents in Fitzgerald, however, and the tradition of common law immunity on which the majority drew, suggest that Mr. Clinton's immunity claims will be rejected by the Court. There is of course no common law tradition of the sort of temporary-but-absolute immunity for which Mr. Clinton argues; nor does society have a strong interest in insuring that would-be Presidents are free to misbehave in hotel rooms. As the Eighth Circuit noted, the Court's struggle in Fitzgerald to find presidential immunity even for official acts "belies the notion . . . that beyond this outer perimeter there is still more immunity waiting to be discovered." 72 F.3d 1354, 1359 (8th Cir. 1996); see also Fitzgerald, 457 U.S. at 759 (Burger, C.J., concurring) (Presidents "are not immune for acts outside official duties").

Given the Fitzgerald Court's insistence that immunity flow from common law traditions and be tightly tied to the performance of official duties -- and the skepticism toward even that limited scope of immunity expressed by the Fitzgerald dissenters -- it is difficult to envision that the current Court would adopt Mr. Clinton's argument to extend presidential immunity to unofficial acts, solely on the ground that such an extension is necessary to save the President from the distraction of litigation.

But even if the Court were to agree to extend Fitzgerald, it is likely that the significance of such a decision would be short-lived. The Court in Fitzgerald was careful to emphasize that its decision took place "in the absence of explicit . . . congressional guidance." Id. at 747; see also id. at 748 n.27 ("we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States. . . . Consequently, our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress."). Although the dissenters and the Chief Justice rejected this limitation, it was obviously an important element in the majority's analysis.

Ms. Jones' federal claims rely upon 42 U.S.C. §§ 1983 and 1985; she also asserts claims under Arkansas common law. The federal statutes are silent on the question of presidential immunity. Thus, even if the Supreme Court agrees with Mr. Clinton, Congress could try to overturn the result, at least for future cases, by providing explicitly that Presidents may be sued for their unofficial acts. Indeed, the 1996 Republican Party Platform already promises that the Soldiers' and Sailors' Civil Relief Act of 1940 -- which Mr. Clinton's petition notoriously suggested provides an analog to the temporary immunity he seeks, id. at 14 -- will be amended to make it plain that Presidents cannot invoke its stay provisions. Under the reasoning of Fitzgerald, similar amendments to title 42 should suffice to insure that future presidents cannot invoke immunity for their unofficial acts. The Court would remain free to find that, despite such congressional action, Presidents nonetheless enjoy absolute, Constitution-based immunity for their unofficial acts that cannot be limited by statute; but the Court's immunity jurisprudence to date suggests that there is little likelihood of such a result.

For those who believe that the Constitution mandates a strong executive there remains, of course, the possibility that Mr. Clinton's policy argument is right, and that some future President could be deluged with meritless, partisan-inspired litigation designed to humiliate and distract the Chief Executive. There is some solace in the fact that Presidents before Mr. Clinton have been targets of partisan anger, but have not found themselves facing litigation about their private, unofficial misconduct. Indeed, Mr. Clinton's immunity defense is one that no other President has ever felt the need to advance.

But should Mr. Clinton's successors ever face such a deluge of suits, the remedies are obvious. Every court to discuss Mr. Clinton's immunity arguments has agreed that Article III judges need to be extremely sensitive to presidential scheduling concerns; and in truly extreme circumstances, Congress could be expected to respond with appropriate legislation, giving Presidents explicitly the "temporary immunity" that Mr. Clinton tries to imply.

*Douglas R Cox is Of Counsel at Gibson, Dunn & Crutcher, Washington, D.C.