A TALE OF TWO CASES:
Why France Said "Non" To The Logic Of clinton V. Jones

By DEAN G. FALVY

Thursday, Nov. 08, 2001

It was the best of times for President Bill Clinton of the United States, the worst of times for President Jacques Chirac of France.

In May 1997, Clinton had recently been inaugurated for a second term as the leader of the world's sole superpower, retaining the privilege of presiding over the biggest economic boom in living memory. His peacemaking efforts in Bosnia, the Middle East, and Northern Ireland were beginning to bear fruit. After initial missteps and several low-grade scandals, he had recovered an edge over his many domestic opponents.

At the same time, Jacques Chirac's presidency was critically wounded. His attempt to push through modest cutbacks in the French welfare state had led to bitter social unrest and crippling strikes. His popularity waning, Chirac called early parliamentary elections in hopes of catching the Socialist opposition unprepared. The gamble backfired: Chirac's conservative supporters lost badly. The remaining five years of his term promised only an awkward "cohabitation," in which he would be forced to share executive power with a Socialist prime minister.

Both men's fortunes were about to change — and one would be aided, and one almost destroyed, by decisions of the highest court in their respective lands.

Clinton v. Jones: Opening the Door to a Threat to the Presidency

As Chirac's electoral prospects flatlined, Bill Clinton got a piece of news from his lawyers that would ultimately prove just as serious. On May 27, 1997, the U.S. Supreme Court in Clinton v. Jones unanimously rejected the president's assertion of "qualified immunity" to civil suits for private acts.

Seven months later, Clinton gave a deposition to Paula Jones' lawyers in which he denied having "sexual relations" with Monica Lewinsky — a contention that would prove strikingly at odds with a dollop of evidence on the young intern's dress. By that time, Jones' seemingly feeble accusations of sexual harassment had metastasized into a mortal threat to Clinton's presidency — a threat that was nursed attentively by a puritanical prosecutor, a titillated press, and a vengeful Republican Congress.

Four and a half years after the Supreme Court's decision, Clinton lives in restless retirement in New York. He managed to survive the Lewinsky scandal by the skin of his teeth. But it contributed heavily to the estrangement and ultimate electoral defeat of his designated successor, and left indelible scars on what would otherwise have been a robust record of achievement.

Jacques Chirac: A Win in Case Similar to Clinton v. Jones

Meanwhile, across the pond, Jacques Chirac is still standing. Indeed, polls suggest he stands a reasonable chance of winning re-election next May.

The most serious threat to Chirac's political health has been the chronic outbreak of campaign finance and corruption scandals relating to his long tenure as mayor of Paris prior to 1995.

But last month, Chirac received a booster shot from the French judiciary as significant as the blow Clinton endured from the U.S. Supreme Court. Expanding on a previous ruling by the Constitutional Council, the Court of Cassation held (in Arrêt No. 481 of October 10, 2001) that the French president could not be tried or even questioned in court proceedings for any offense short of high treason for the duration of his term.

The immunity granted to Chirac by the French court went far beyond what Clinton had sought in Jones: it covers criminal as well as civil matters, and investigations by public magistrates and well as private discovery. In essence, the court turned over to the French electorate the question of whether Mr. Chirac would, in the words of one commentator, be sent to the Presidential Palace or the Palace of Justice. If he gains re-election, he can delay investigation and trial for as long as he remains in office.

For some, that's exactly how it should be in a democracy. Let the voters decide, they say, instead of a "government of judges" and overzealous prosecutors exemplified by the likes of Kenneth Starr. For others, the decision to put the French president "above the law" is alarming, especially given the paucity of constitutional restraints on the office.

Why the U.S. and French Courts Differed on Presidential Immunity

In both the U.S. and French cases, the incumbent made a simple argument. The presidency is a unique and vital office, he claimed, whose functions must not be impeded by the time and energy required to defend against judicial proceedings of a personal nature.

The U.S. Supreme Court resoundingly rejected that argument, while the French Court of Cassation found it persuasive. What accounts for the wild difference in outcome?

France and the U.S. each have their own constitutions, statutes and legal precedents, of course — all of which had an impact on the decisions. But for both countries, the case was truly one of first impression. In the absence of clear governing provisions or precedents, both courts had to theorize about the demands of the presidency in a modern democracy, and balance them against the vaunted principle of equality before the law.

Three factors may explain the different results: realism, deference and novelty.

Being Realistic About Presidential Investigations

The Supreme Court's decision in Clinton v. Jones will not be remembered for the power of its reasoning, but for the naiveté of its political judgment. Justice Stevens famously concluded of Paula Jones' suit, "it appears to us highly unlikely to occupy any substantial amount" of President Clinton's time. The Court's prediction was fatally flawed, as events quickly demonstrated.

The Justices may not have anticipated the tortuous consequences of the president's attempt to bluff his way through a deposition. That ill-fated choice was Clinton's alone. But the Court should have at least been aware that the nature of Paula Jones' accusations would lead to a detailed examination of the president's sex life. Given the all-consuming nature of modern civil litigation, and the attention focused on the president in our society, Justice Stevens' conclusion seems utterly detached from reality.

Justice Breyer, in his partial concurrence (which reads more like a dissent), warned that "[i]t may well be that the trial of this case cannot take place without significantly interfering with the President's ability to carry out his official duties." Breyer lost the argument with his colleagues, but his diagnosis has been vindicated in every respect. If anything, it was an understatement.

The French court approached its task with a bit more realism. The idea that judicial proceedings can be used as a form of political combat was explicitly taken into account.

The opinion of the court's advocate general, which was followed closely by the court itself, astutely noted that even compelling the head of state to testify as a witness could serve as a smokescreen for political attack, and a springboard for direct criminal investigation. The court concluded that presidential immunity was necessary to ensure "the regular functioning of public power and the continuity of the State."

Deference to Executive Authority

Another factor in the French decision was an explicit concern for the "dignity" and "eminence" of the office of the presidency, as being necessary for the "cohesion of the Nation and the image of France abroad."

In fact, aside from the occasional guillotining, the French have traditionally shown great deference to executive authority. The Revolution never completely erased the legal notion that "the king can do no wrong." This tendency has been codified in the Constitution of the Fifth Republic and acted out by a succession of French presidents who adopted somewhat regal airs.

The French president, as head of state, is expected to remain remote and above the fray. He addresses the public with a vagueness bordering on the Delphic, and builds vast monuments to his reign suggesting the Pharaonic. Public debate and details of policy are left to the prime minister, as the head of government.

The U.S., by contrast, was founded in direct defiance of executive authority. Most of the Declaration of Independence is devoted to proclaiming the alleged tyranny of King George III. And although the U.S. Constitution eventually created a strong executive, the office and its occupants have rarely been held in awe.

Dick Cheney notwithstanding, there is no equivalent to the position of prime minister. The U.S. president is simultaneously head of state and head of government, and cannot avoid the rough and tumble of political debate.

Except in times of crisis, the U.S. president is not a symbol of national unity, but simply the most powerful piece on the political chessboard. The dignity of the office suffers accordingly. But to afford it too much deference could be harmful to the balance of power.

The Supreme Court's opinion in Jones unconsciously reflected this instinctive irreverence. The Court acknowledged some concern about whether its decision would encroach upon the powers of the presidency, but (in sharp contrast to the French decision) did not say a word about its possible impact on the dignity of the office.

The Influence of Novelty: Cases of First Impression, with Contrasting Results

A final factor explaining the difference between the U.S. and French decisions is that of novelty. For both countries, the assertion of presidential immunity lacked clear-cut support in precedent. But that factor cut different ways.

In Clinton v. Jones, the U.S. Supreme Court, surveying 210 years of constitutional jurisprudence, seemed reluctant to discover an implied principle of presidential immunity previously hidden in the document. Moreover, since there had been only three private lawsuits against presidents during that time (two of them quickly dismissed, the other settled out of court), the Jones Court was quick to minimize the potential mischief of its decision.

But the most important historical factor, perhaps, was the experience of Watergate. After all, President Nixon had tried to exploit foreign policy crises and the aura of the presidency in order to deflect attention from his crimes. Though it remained unspoken, any attempt to place the American president "above the law" through constitutional immunity would have to pass a sort of "Nixon Test": Would the legal rule created have prevented the investigation of a president who drenched the White House in crime and abuse of power? And, in fact, a rule of immunity as broad as the one adopted by the French would have done just that.

Throughout their long history, the French have become accustomed to a certain degree of corruption, especially in campaign finance and public contracts. But France's present constitution has been in effect for only 42 years. The absence of any earth-shattering presidential scandal during that time meant that the French court was not fazed by the fact that the issue had not been raised before. (It helps that the subject of extramarital dalliance has been strictly off-limits–one wonders whether Bill Clinton might not have made an excellent President of France.)

Moreover, without the specter of a "French Nixon," the Court of Cassation had no horror story in the back of its collective mind — no image of a president who would take advantage of immunity to run completely amok.

Risks of the French Rule — and History's Verdict on Whose Rule Is Right

As it is, the French decision poses plenty of moral hazards. One wag suggested that the court condemned Mr. Chirac to a perpetual re-election campaign, since the immunity expires when he leaves office. (France has no term limits.)

Others pointed out that the presidency could become the last refuge to which a scoundrel aspires. Come election time, any celebrity with serious legal problems will be tempted to throw his or her chapeau in the ring. Lest that be taken as some kind of joke, one need only look across the border to Italy, where the much-indicted tycoon Silvio Berlusconi recently won a new term as prime minister.

History will judge which court made the right decision. It is certainly too soon to tell. But from the perspective of the late fall of 2001, the burdens of executive authority have never seemed greater.

The questions of war and peace, security and economic turmoil, seem more than enough to occupy the attention of our leaders. At this moment in history, we don't want them to be preoccupied with explaining spots on a dress, or even the odd shoebox of missing public funds. In exchange for that indulgence, the leaders of the world would be well advised to do one thing: act busy.


Dean G. Falvy, a graduate of Yale University and Harvard Law School, is an attorney focusing on corporate and international law. He has also taught legal writing at Seattle University School of Law.

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