Part VI
Proof that the Supreme Court's Decision
in Clinton v. Jones (1997), ordering President
William J. Clinton to stand the Paula Jones civil Suit,
including the compulsory Discovery Proceedings,
was oppressive, being founded on the Court's
unconstitutional Doctrine of Presidential Immunity
from civil Suits by "Judicial Discretion," and on
the Court's disregard of the Duties of President
as expressed in the Constitution.
Introduction 1
Relevant Parts of the Constitution
concerning the Supreme Court's Opinion
in Clinton v. Jones 7
The Meaning of the judicial Power 11
A Basis for staying the Paula Jones
until Mr. Clinton leaves Office
and also for judging the Materiality
of Discovery Questions of "other Women." 37
Proof that the Supreme Court's Decision
in Clinton v. Jones (1997), ordering President
William J. Clinton to stand the Paula Jones civil Suit,
including the compulsory Discovery Proceedings,
was oppressive, being founded on the Court's
unconstitutional Doctrine of Presidential Immunity
from civil Suits by "Judicial Discretion," and on
the Court's disregard of the Duties of President
as expressed in the Constitution.
In the year 1994 Paula Jones filed in the United States District Court in Arkansas a civil suit against Mr. Clinton arising out of an alleged incident of "sexual harassment" that is said to have occurred on May 8, 191, well before Mr. Clinton assumed the office of President of the United States in January 1993. The suit is based in part on claims under Federal Law (42 U.S.C. §§1983 and 1985), which is the alleged grounds for the federal jurisdiction in this case. According to the Supreme Court, Mr. Clinton responded to the suit with a motion to dismiss the suit "without prejudice," on "the grounds of Presidential immunity," so as to permit plaintiff Jones to refile her complaint in the District Court after Mr. Clinton leaves office as President. The District Court denied defendant Clinton's motion, with the Court of Appeals affirming; whereupon, Mr. Clinton "petitioned" the Supreme Court for a writ of certiari. The Supreme Court then agreed to review the matter of Mr. Clinton's motion.
Upon its deliberation, the Supreme Court upheld the Appeals Court, thereby in effect ordering Mr. Clinton to stand the Paula Jones suit and submit to a compulsory examination in a deposition, the compulsory discovery proceedings under the Federal Rules of Civil Procedure. What follows is a critical review of the Supreme Court's opinion in Clinton v. Jones, the opinion that accompanied the Court's order.
The Court opinion in Clinton v. Jones asserts and pronounces a "doctrine" of law or right that the President of the United States enjoys, as an inherent prerogative of the office, a right of immunity from civil law suits; but which right is to be determined in each case at the "discretion" of the judiciary, meaning the Supreme Court ultimately, with the qualification: That for something called "private" law suits arising out of the President's official acts or conduct, the President has "absolute immunity" from "personal liability" for those official acts or conduct. As to "private" law suits arising from unofficial conduct, the Court held that a President may not be immune from a civil suit, depending on "appropriate circumstances" which the judiciary is to determine, again, at its "discretion." Also, the court held that a President, whether he be a party to a law suit or not, may be subjected to "judicial process," that is, the President may, by Court order, be compelled to provide testimony or papers; and, furthermore, the Court held that the Courts have power to compel the President to submit to a civil suit or otherwise to undergo an examination and provide papers.
The following passages from the Supreme Court opinion (117 S.Ct. 1644,1645) demonstrate these points:
1. The President of the United States is "entitled to absolute immunity from damages liability predicated on his official acts," citing the Supreme Court opinion in Fitzgerald v. Nixon,
457 U.S. 749.
2. "Our central concern [in Fitzgerald] was to avoid rendering the President unduly cautious in the discharge of his official duties."
"This reasoning provides no support for an immunity for unofficial conduct. As we explained in Fitzgerald, the sphere of protected action must be related closely to the immunity's justifying purposes. Because of the President's broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the outer perimeter of his authority."
3. "With respect to acts taken in his "public character" that is official acts the President may be disciplined principally by impeachment, not be private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts."
Having asserted these opinions, the Supreme Court went on to assert a contradicting holding in regards to the President's "official conduct:"
"First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law."
Observe that the Court says that they have the authority to determine whether the President acts within the law, not that they have the duty to hear and determine a civil complaint of illegal, unconstitutional action taken by a President.
As regard to compulsion, the Court held:
"Second, it is also settled that the President is subject to judicial process in appropriate circumstances."
As process is defined by Blackstone as "the method taken by the law to compel a compliance" with a judicial writ, the Court's use of the phrase "judicial process" implies that the Court's assumes the power to compel the President, instead of to command him. Further, the Court said that its decision, in Clinton v. Jones, "does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place," thus suggesting that it is not "settled" that the Court cannot compel a President (or any one else) to do a thing.
The Supreme Court then summarized its convoluted holding:
"In sum, it is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President's time and energy that is a mere by-product of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions. We therefore hold that the doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office. ...
"In all events, the question whether a specific case should receive exceptional treatment is more appropriately the subject of the exercise of judicial discretion than an interpretation of the Constitution."
As the foregoing passages show, the Supreme Court has held that the Courts have a discretion power to "protect" the President from law suits, that is, to dismiss suits on a claim of presidential immunity determinable by the circumstances of a case, or to subject a President to "judicial process" (compulsory witness or production of papers, as well as compelling him to stand a civil suit)); but only "in appropriate circumstances." In Clinton's case, the Court judged that the Paula Jones suit would not significantly burden the President in diverting "time and attention" away from his "official duties;" and, therefore, ordered him to submit to the Paula Jones suit. The Supreme Court did not define the "appropriate circumstances" in which a President may be granted immunity from a civil suit (at the discretion of the Courts); but their holding is clearly a claim of a complete "judicial discretion" power, not subject to any "interpretation of the Constitution."
Let us not guess wrongly of the importance of the Supreme Court's (Judiciary's) claim and assumption of discretion power to protect and immunize Presidents from civil suits. In the years 1968 and 1969 the United States Courts dismissed a law suit against President Johnson, then against President Nixon, which charged that these Presidents were making war in Vietnam in violation of the Constitution, and consequently, infringed certain alleged rights of the plaintiff. Said a United States District Court in the case Velvel v. Johnson,
"The judiciary is not that department of the government to which the assertion of its interests as against foreign powers is confided. It follows that the court should do no act which, directly or indirectly, would embarrass the government in conducting its international affairs. It has been uniformly held that those questions, the decision of which, as it might involve war or peace, must be primarily dealt with by those departments of government which have the power to adjust them by negotiation, or to enforce them by war. In such cases, the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction." (287 F. Supp. 846, 850.)
The Court of Appeals denied plaintiff Velvel's appeal, and pointed out that not even draftees and draft registrants who are compelled to "participate as combatants" in the war have the right to sue the President or otherwise sue the Government on the issue of the constitutionality of the war.
Thus, the Supreme Court's vaguely worded holding in Clinton v. Jones about a "doctrine" of Presidential immunity from civil suits, except in "appropriate circumstances" as determined by "judicial discretion," means nothing less than the Supreme Court reserving for the Courts of the United States a power to protect Presidents from civil suits which charge a President of having made WAR in violation of the Constitution with consequent infringements and deprivations of one's rights to life, liberty, and safety (as the danger of nuclear war), or other gravely serious kinds of infractions of the Constitution with consequential injuries to persons who pursue remedies by suits in the United States Courts; while at the same time, under "appropriate circumstances," "compelling" a President to stand a law suit which does not charge him with committing any unconstitutional or other illegal acts after he assumed office, but which merely charge that he had done the complaintiff some wrong some time before he was elected President, like a charge of sexual harassment, or a claim of a debt unpaid, or the like.
It is emphasized that the Supreme Court has asserted the power to "compel" a President to stand and submit to a law suit, including a compulsive examination (Mr. Clinton's controversial deposition). The word used by the Supreme Court is "compel," not "command," (page 1643). There is a material difference between these two words. As will be shown below, the judicial power under the Constitution includes the power to command the performance of an act, as commanding the testimony of a witness, or the execution of judgment, by a writ of execution, by determining and declaring the law arising upon the facts of a case; but the Supreme Court power does not extend to include the executive power of compelling any person to do a thing. Yet, the Supreme Court has for some time now assumed the power to compel, by means of a statute giving the Court the power to appoint (and remove at pleasure) a marshal whose duty it is to execute the orders of the Supreme Court, the use of force. Their use of the word "compel" reflects this real, but unconstitutional, power now assumed by the Supreme Court.
The Supreme Court's opinion in Clinton v. Jones is wholly wrong. To be demonstrated below, the Constitution confers to the President no privilege of immunity for civil suits of any kind. Also, as will be shown below, the Supreme Court has no discretion power inherent in the judicial power to confer to a President protection or immunity from a law suit. However, a Court could stay a suit against a President, if a stay would be appropriate under the circumstances of the specific case and in compliance with Article II, Section 2 of the Constitution, namely, the President's duty that "he shall take Care that the Laws be faithfully executed," as the Judges are to be bound by oath to support the Constitution, including Article II, Section 2 pertaining to the President's duties. Moreover, the President is not subject to compulsion by the Courts, including the Supreme Court, but only to the lawful commands of the Courts; for the President holds the executive power, which is the only power of compelling (use of force) anyone to observe lawful judicial commands. Only the President is vested by the Constitution with the power of executing the writs of the Courts; although the Congress may by law establish subordinate executive officers for executing the judicial writs, subject, however, to the President's direction, that is, officers who are to be subordinate to the President. By the Constitution the President alone is charged to take care that the laws be faithfully executed, not the Courts, nor any marshal of associated with a Court, as the present marshal of the Supreme Court.
The Supreme Court in its opinion in Clinton v. Jones gives no analysis of the Constitution to prove its holdings in that case, nor any analysis of any of the treatises on law which the makers of the Constitution certainly used in writing the Constitution. Apparently, the Court did not seek to find out and ascertain the requirements of the Constitution with respect to civil suits against the President. They did not find out and ascertain the intentions of the People who ordained and established the Constitution in these regards. Indeed, the Court asserts that the President's immunity from civil suits is more appropriately the subject of "judicial discretion" than "an interpretation of the Constitution" a plain contempt of the Constitution. The Court makes a further mockery of the Constitution when commenting on the usefulness of "historical materials," by quoting Justice Jackson:
"Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side ... They largely cancel each other." (p. 1645)(1)
The basis which the Court presents for its holdings is two-fold, and consists of (1) a series of assertions and pronouncements, and (2) previous court dicta, or precedents, as if the Supreme Court has the right to confer privileges upon the President or otherwise to expound or clarify the Constitution. However, the Constitution does not expressly confer to the Court such a right and power; and moreover, the United States Government obtains its lawful powers not by its usurpations that establish precedents, but only by positive grants of powers as expressed and declared in the Constitution, that ought to be plain. The following analysis disproves the Court's opinion.
To begin, the parts of the Constitution which are to be pertinent to the present question are quoted below and analyzed.
Article I, Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I, Section 6. The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Article I, Section 8. The Congress shall have Power ...
To constitute Tribunals inferior to the supreme Court; ... And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Article II, Section 1. The executive Power shall be vested in a President of the United States. ...
Before he enter on the Execution of his Office, he [the President] shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Section 2. The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. ...
Section 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; ... he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. ...
Section 4. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article III, Section 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ...
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ...
Article VI. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; ...
10th Amendment. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
"But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject [citizen], which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,
1. The constitution, powers, and privileges of parliament, ...
2. The limitations of the king's prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. ...
3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administred therein. ... and therefore every subject, ... for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.
In Book III, Chapter 7 on "the Cognizance of Private Wrongs," it is laid down:
"For it is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury it's proper redress." (page 109)
Again, there are no exceptions.(2) (The second passage from Blackstone above was quoted in the Supreme Court opinion in the case Marbury v. Madison.)
Thirdly, the judges are to be bound by oath or affirmation to support the Constitution of the United States. (As before mentioned, the judges of the United States Courts evidently have not taken an unambiguous oath to support the Constitution, as Article VI directs shall be done.) Fourthly, only the President is vested with the executive power, not the Courts, nor any of their officers (judges) or any "inferior officers," as a "Supreme Court marshal." (Recall that the Supreme Court appoints a marshal with the duty to execute the process and orders of the Supreme Court; so that this marshal is subordinate to the Supreme Court, not the President, which amounts to usurpation by the Supreme Court of the executive power of the Government.)
Fifthly, the President has very great duties. He is bound by oath to execute the office of President, and to the best of his abilities, to preserve, protect and defend the Constitution of the United States. Further, he is subject to the directive that "he shall take Care that the Laws be faithfully executed."
Therefore, because the judges are to be bound by oath (or affirmation) to support the Constitution, they ought to take into consideration these high duties enjoined on the President, when administering the judicial proceedings of a civil suit against the President. More specifically, the judges ought to make their rulings on a possible dilatory plea put in by a defendant President, as a request for a stay of the suit until the President leaves office, or until such time as he can properly attend the suit, so as to support the Constitution, by weighing the rights of the plaintiff with the rights and duties of the President under the Constitution, especially his duty to take care that the laws be faithfully executed. But before we may apply these evident principles, it is necessary to establish just what is the power, the "judicial power," which is vested by the Constitution in the Courts of the United States (Art. III).
The Meaning of the judicial Power
Does the "judicial Power" include discretionary power, as the Supreme Court asserts in Clinton v. Jones? And is the judicial power such that the meaning of the Constitution, for instance, in regards to the present question of presidential immunity, is to be found in prior Supreme Court opinions, instead of by the plain meaning, deductions, and tenor of the Constitution itself? Is the meaning of the "judicial power" that which the people who ordained and established the Constitution certainly understood? Is the judicial power a power to render any judgment the judges please, bound not by the manifest tenor of the Constitution, but a discretion power to follow only the Court's opinions in previous cases as well as to make new opinions or "doctrines"? Is the "judicial power" any power which the judges of the Supreme Court choose to define it?
Because the leading declaration of the Constitution has it that the People ordained the Constitution, it ought to be self-evident that the true meaning of the Constitution is that which those people intended, that the "judicial power" be that which they understood the expression to mean. And for that understanding we have to consult Blackstone's Commentaries on the Laws of England, and Vattel's The Law of Nations; for the expression "judicial power," and all other terms and expressions used in the Constitution, were defined and used in those classic treatises on law and the science of government, which the makers of the Constitution certainly used to write the supreme law of the land. From these treatises, the judicial power is the power of judging disputes or controversies in suits in the Courts of justice, including disputes over the meaning of certain laws, or certain rights prescribed by law. Blackstone defined the"judicial power" as
"A Court is defined to be a place wherein justice is judicially administred." (III, Ch. 3)
"In every court there must be at least three constituent parts, the actor, reus, and judex: the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain and by it's officers to apply the remedy." (III, Ch. 3, p. 25)
The word determine is significant. The word is first used by Blackstone in connection with a law suit as the act of the courts of justice "to hear and determine" complaints or infringement of rights (Book III, Ch. 3, p. 24). The word determine is the action performed to terminate a dispute, yes: but "to determine the law arising upon that fact" is to judge the dispute of the law, and thereby settle the differences: to decide the legal issue presented to the Court by the parties of the suit. Thus, the courts, by Blackstone's definition of the judicial power, are to determine the law, not merely to determine the action: not to decide the cause by the arbitrary caprice of the judge, or in other words, by the discretion of the judge, but to judge the controversy according to the law of the land. The judgment pronounced and awarded by the judges is not their determination and sentence, but the determination and sentence of the law. Thus, there is no discretionary authority vested in the judges or the Courts of the United States. Instead, being vested with the judicial power, the judges have the duty to investigate and find out and ascertain what the law truly means for the case that is presented for adjudication; to determine the law upon solemn argument of the counsel of the parties, upon deliberation, study, and inquiry, more simply stated, to find out and ascertain by study and investigation what the law is, not to make law, or to make discretionary decisions and doctrines.
Said Blackstone, at the end of the pleadings in the proceedings of a suit, when the issues are joined, the Court must set out to judge the issue in law, when the law is in dispute, or in Blackstone's words,
"if the matter of the plaintiff's complaint or declaration be insufficient in law, ... which issue in law, or demurrer, the judges of the court before which the action is brought must determine.
"An issue of fact is where the fact only, and not the law, is disputed. ... And this issue, of fact, must generally speaking be determined, not by the judges of the court, but by some other method; the principal of which methods is that by the country, per pais, (in Latin, per patrium) that is, by jury." (III, Ch. 21, p. 314-315).
Blackstone added,
"questions concerning the sufficiency of the matters alleged in the pleadings, are to be determined by the judges of the court, upon solemn argument by the counsel on both sides; ..." (III, Ch. 21, p. 317)
As for the judgment of the court, Blackstone said:
"The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, ... Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries; and the suit or action is the vehicle or means of adminsitring it. What that remedy may be, is indeed the result of deliberation and study to point out, and therefore the stile of the judgment is, not that it is decreed or resolved by the court, for then the judgment might appear to be their own [hence, no discretion power]; but "it is considered," consideratum est per curiam, that the plaintiff do recover his damages, his debt, his possession, and the like: which implies that the judgment is none of their own; but the act of law, pronounced and declared by the court, after due deliberation and enquiry." (III, Ch. 24, p. 396)
All this demonstrates, plainly, that the "judicial power," which the Courts of the United States are vested with by the Constitution, was understood and intended by the People who ordained and established the Constitution to be not a discretion power: not a power for the judges to determine by "arbitrary caprice," or otherwise by their own private judgment, but the power to judge according to the law of the land: not to determine the issue in law by reliance on doctrines of the Courts or by discretion, but upon solemn deliberation, study, and enquiry upon formal argument of the counsel of parties: to determine the true meaning of the law, the intentions of the law makers. Said Blackstone, "The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable." (Book I, Introd. §. 2) Both the courts of law and the courts of equity, said Blackstone, "are equally bound, and equally profess, to interpret statutes according to the true intent of the legislature." (III, Ch. 27, p. 431)
Neither is the judicial power to assume executive power. A law, defined Blackstone, is a rule of civil conduct, prescribed by the legislative power (the law making authority), commanding what is right, and prohibiting what is wrong. (Book I, Introd. § 2. Therefore, the judgment of the Court being the determination of the law, naturally should reiterate the command of the law, by the writ of execution, commanding the executive power to execute the judgment of the Court, that is to say, to execute the law, or the sentence of the law. For the Court judgment is determined to be the law arising upon the facts of the case, hence amounts to a more specific command of the law for that case. The judicial power, then, is the power to command, but not the power to compel, not the executive power.
Indeed, by the British Constitution, as expounded by Blackstone's Commentaries, the judicial power is subordinate to the executive power. By Blackstone, the Courts are to take cognizance of no causes except only those which are referred to them by the king, the supreme executive power, by the return of the original writ of a suit.
To explain, drawing on Chapter 18, Book III, of Blackstone's Commentaries on the Laws of England. The proceedings of a suit in a court of justice by the common law of England, according to Blackstone, are commenced by the complaintiff by obtaining from the Chancery (suing out and purchasing) an original writ, which is a mandate from the king directed to the sheriff of the county, the sheriff being the leading "subordinate executive magistrate" in the county, that is, subordinate to the king, and the country wherein the injury is alleged to have been committed, requiring him, the sheriff, to command the wrong doer to do justice to the plaintiff, or else appear in the court of common pleas at a specified time and answer the accusation against him. The sheriff executes this mandate from the king by issuing a summons to the defendant, which carries out the king's mandate and warns the defendant to appear in court at the return of the original writ. At the specified time the sheriff returns the original writ to the court of common pleas. Thus, the original writ, said Blackstone,
"is the foundation of the jurisdiction of that court, being the king's warrant for the judges to proceed to the determination of the cause. For it was a maxim introduced by the Normans, that there should be no proceedings in common pleas before the king's justices without his original writ, because they held it unfit that those justices, being only the substitutes of the crown, should take cognizance of any thing but what was thus expressly referred to their judgment." (III, Ch. 18, p. 273)
Said Blackstone, the king is the "fountain of justice," hence, a complaintiff goes to this fountain, starting at the chancery, for the original writ. The summons is the first of a series of steps performed by the executive power, called the process, defined as the means for compelling the defendant to appear in court, as well as summoning juries, witnesses, and the like, and including the final process, namely, the execution of judgment. If the defendant fails to appear at the return of the original writ, the court, not the chancery, issues judicial writs to the sheriff, commanding him to take such actions as necessary to compel the defendant to appear in court to answer the complaint. Thus is the relation between the judicial power and the executive power, according to Blackstone. The former, the judicial power, commands; the latter, the executive power, compels. The executive power is exercised immediately by the sheriff. It brings together in the court the parties, and generally executes the judicial writs. It attends to the court's needs (witnesses, papers and other evidence), and executes the court's judgments; thereby confining the judicial power to that of enquiry, deliberation, in the presence of the parties, judging the issues of the cause, declaring the sentence of the law (the judgment), and then commanding, but not acting to compel, the execution of the judgment.
Under the Constitution of the United States, the relation between the executive power and the judicial power is materially different; though the judicial power remains the same, since the Constitution gives no new definition of it. The judicial power under the Constitution is separated from the executive power, that is, it is not held in subordination of the President, but is vested, by the mandate of the people, in the Supreme Court and the inferior courts as the Congress shall ordain and establish. Further, Article III, Section 2 directs that:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ...
Plainly, therefore, under the Constitution of the United States, the plaintiff commences his suit by applying directly to the Courts. There is no obtaining an original writ from the chief executive magistrate at a chancery. For the people, by our Constitution, mandated that the judicial power shall extend to all cases arising under the Constitution and the law of the United States, &c.; and, therefore, the jurisdiction of the courts shall not depend on a warrant issued by the executive magistrate, the President, referring a complaint to the courts for their proceedings.
This plain separation of the judicial power from the executive power, however, does not mean that the Congress by statute may confer to the Supreme Court any portion of the executive power of the Government, as Congress has done, by vesting the Supreme Court with the power to appoint and direct a marshal a Supreme Court marshal (28 U.S.C. §. 672). This assumption, or usurpation, of executive power is reflected in the Court's talk in Clinton v. Jones about "compelling" a President. Said the Court,
"Second, our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place." (117 S.Ct. 1643).
As The Federalist explain it:
"Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors [offices] but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated [including the President and the executive officers of the government]. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." (No. 78)
Moreover, in the federal Convention of 1787 the draft of the Constitution that was reported by the Committee of Detail declared that "the judicial power of the United States shall be vested in one Supreme Court," &c., as is stated in Article III, Section 1 of the final Constitution, but regarding the extent of the courts' power, or jurisdiction, the draft constitution read:
"Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases arising under [the] laws passed by the Legislature of the United States, ..."(3)
This section, of course, was changed to read in the final Constitution,
"The judicial Power shall extend to all Cases in Law and Equity arising under this Constitution, the Laws of the United States," &c.
This change is significant: It plainly signifies that the Convention wanted no handle for the Supreme Court to assume any power other than the judicial power. For a mandate that the "jurisdiction" of the Supreme Court shall extend to all cases &c., would raise the question as to what all entails or not entails the court's jurisdiction; leaving then to the Courts to define their jurisdiction, which jurisdiction might then be held to include an independent executive power of whatever definition, such as a power to appoint independent prosecutors, or marshals, or to confer privileges, as granting favored Presidents immunity from civil suits.
Also, according to Blackstone, the supreme executive magistrate of the British Constitution, the king, possessed a "special prerogative" of conferring to designated persons, including officers of the government, a privilege of an immunity from suits, by issuing writs of protection (III, chapter 19 on Process, p. 289) And, of course, the king himself was absolutely immune from personal injury suits (III, Ch. 17, p. 255). In contradistinction, the Constitution of the United States confers no such prerogative power to the President, and confers no such privileges; although it vests the President with the power to grant reprieves and pardons for criminal offenses against the United States (except in cases of impeachment).
Plainly, therefore, had the Federal Convention intended the President to have immunity from law suits, and also to have a power to direct the Courts to quash or even stay law suits against any of the executive officers (writs of execution), they would have, or ought to have, expressed it so; as they have expressed a power of conferring the privilege of sorts in the article of pardons for offenses, and as the Constitution expressly privileges the members of the Congress from law suits for whatever they say in the debates in the Houses of the Congress. Indeed, the people who ordained the Constitution were jealous of privileges. The Federalist, No. 69, in comparing the prerogatives of the king of Great Britain with the powers and duties of the President of the United States under the Constitution, said that the President "can confer no privileges whatever."
Thus is the relation of the judicial power to the executive power under the Constitution of the United States, by plain deduction with the aid of Blackstone's Commentaries on the Laws of England, to establish that relation which the People of the United States certainly intended when they ordained and established the Constitution.
To return to the definition of the judicial power in regards to the Supreme Court's opinion in Clinton v. Jones, particularly now the Court's assertion of a "discretion" power to decide the "appropriate circumstances" for allowing, or not allowing, a President immunity from a civil law suit, we need to quote Blackstone precisely: Said he, in regard to the courts of justice and the "common law," or, in other words, the unwritten laws, or legal custom,
"They [the courts of justice] are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; ... from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. ... For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. ...
The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: ... So that the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law." (Commentaries, Intro., §. 3, pp. 69-71)
As to statutes, or written laws, Blackstone said,
"They are either declaratory of the common law or remedial of some defects therein." (id., p. 86).
By its opinion in Clinton v. Jones and virtually all other Supreme Court opinions since at least McCulloch v. Maryland (the year 1819), the Supreme Court has acted, but unconstitutionally, to establish for the United States this principle of the British Constitution which Blackstone articulated. By virtue of the Supreme Court dicta issued over the years, the Supreme Court has claimed to be the depositary of the "common law of the United States," so to speak, generally called, "case law;" whereby the Supreme Court dictates, then later maintains, this or that "doctrine," or a "principle" frequently with "exceptions," qualifications, and refinements or variants, to be determined by the Court at its discretion. As a consequence of this practice, or assumption of power to make "case law," a virtual infinite array of declared doctrines, principles, exceptions, qualifications, refinements, revisions, and the like (reflecting discretionary power), has accumulated, never mind the occasional contradictions or reversals (as when the Supreme Court held that Congress has no power to regulate labor in Kidd v. Pearson, and then later hold the contrary in U.S. v. Darby).(4) The fundamental rule being by this theory of the judicial power simply: "The Constitution is what the Supreme Court says it is!"
But let us compare the Constitution of the United States with Blackstone's exposition of the British Constitution. Under the latter, the "law of the land" includes not only the statute of the legislator, but legal custom, or the common law, as it is called in Blackstone, the evidence of which is found in the records and reports of the decisions of the courts of justice; for the courts are the "depositary of the law." But for the United States, by our Constitution, there is no declaration of any such law of legal custom or precedent, or unwritten laws. To the contrary, Article VI of the Constitution declares that:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Thus, by Article VI nothing else is the law; not custom, and not Supreme Court doctrines and opinions.(5) Also, the laws which shall be made in pursuance of the Constitution can only be made by the Congress, as Article I, Section 1 and Section 8 of the Constitution vests in the Congress, and in the Congress only, the power to make laws, the "legislative powers" (Art. I, Sec. 1); and where a law is a bill enacted into law, hence a statute, by Article I, Section 7.
The coronation oath of the king of England, by Blackstone, is:
"Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same? --- The king or queen shall say, I solemnly promise so to do.
The oath required of the President of the United States is for comparison:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
There is nothing in the United States Constitution, therefore, about custom being the law of the land, or judicial opinions being the law of the land.(6)
It is also significant that the Constitution does not employ the language of executive power in the assignment of powers and duties of the Courts of the United States, as is the case in Blackstone's Commentaries. Frequently, Blackstone uses the phrase "take cognizance," as the court of king's bench "takes cognizance both of criminal and civil causes." (III, Ch. 4) The would take is significant. It is used in defining the powers of executive magistrates in executing process; as the sheriff "to take the body of the defendant," and bring him to the court to answer the accusation against him in a civil suit; and "in criminal proceedings, to "pursue and take all traitors, murderers, .. and commit them to the gaol for safe keeping" (arrest). (I, Ch. 9, p. 337) It is significant, therefore, that the Constitution of the United States directs the President, who alone is vested with the "executive Power," that "he shall take Care that the Laws be faithfully executed." No such take language appears in the specifications in the Constitution of the powers and duties of the Courts of the United States. The word take is the language of "active resolution" of a power to compel without being supervised by a superior power. This peculiarity in favor of the President has significance when analyzing the Constitution with respect to the question of the propriety of the Supreme Court holdings in Clinton v. Jones, as will be shown later in this paper.
From the preceding it is established that the President of the United States enjoys no immunity privilege from civil suits whatsoever: The Constitution directs that the judicial power shall extend to all Cases arising under this Constitution, the laws of the United States, &c. to ALL cases. The Courts, therefore, are not vested with a discretion power to confer upon Presidents such immunity privilege.
And furthermore, the judiciary enjoys no executive power. In this regard the Courts ought to make out their writs so as to refrain from commanding a marshal to execute this or that command; but to declare that it is the judgment of this Court that the law commands that this or that be done, thereby referring to the duty of the President to take care that the laws be faithfully executed. Or the judge in issuing a writ may call on the marshal for its execution; but must be careful not to imply or suggest that the marshal is subordinate to the Court, but instead is subordinate only to the President, the holder of the executive power. Such a form would avoid any suggestion that the marshals are bound to execute the writs of the Courts, should the President direct otherwise.
Incidentally, Article III, Section 2 does not mean that the President is subject to any subpoena power in suits in which he is not a party, such as compulsory appearance as a witness in a civil suit, or even to produce papers and other thing. For the Constitution is silent on these points; except that the Congress has the power to make the laws directing the forms of proceedings in the Courts for civil suits, but only laws which shall be necessary and proper. For criminal prosecution, the President is plainly subject to compulsory appearance as a witness, by Amendment VI of the Constitution:
"In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor, ... "
Here, there is no exception in the case of the President as a witness.
The President as a defendant in a civil suit, however, could properly plea with his answer for a delay or stay of the suit, if such a delay were consonant with his constitutional duty, to take care that the laws be faithfully executed, and his oath "to preserve, protect, and defend" the Constitution. An allowance of such a plea is deducible from the Constitution, a natural addition to the three sorts of dilatory pleas which Blackstone laid down, namely, a plea to the jurisdiction (the wrong court), or to the plaintiff's disability, as an alien enemy or an outlaw, or a plea in abatement, to quash the complaint because of some material defect of form, as misnaming the defendant, or that the plaintiff is dead. Recall the king's special prerogative to issue writs of protection, barring, but for a limited time only, suits against certain officers of the government named in the writ.
For the case of a plaintiff disability,the suit is not dismissed, or quashed, but is merely "stayed," until the disability be removed. In applying the principle underlying the dilatory pleas allowed by the British common law, to the Constitution of the United States, we are confronted with the fact of the expressed duty enjoined on the President that "he shall take Care that the Laws be faithfully executed," coupled with his oath to faithfully execute the office of President, and to preserve, protect and defend the Constitution of the United States. Although the Constitution falls short of granting the President immunity from civil suits and a power to confer immunity to executive officers, the precept "he shall take Care that the Laws be faithfully executed," does plainly authorize the President to take care, that is, to act carefully without any allowance from the judiciary, but only with the object of the faithful execution of the laws, which includes, by the way, the enforcement of the rights of plaintiffs in their prosecution of their complaints in the courts.
Suppose, therefore, that the President is sued (a civil suit, naturally, since he is not amendable to a criminal prosecution, except by the House of Representatives in an impeachment proceeding), and that the wrong doing alleged in the suit is not about the President committing any infraction of the federal laws, but an alleged infringement of personal or property rights, as a defamation suit, a debt action, or the like, or even if the cause of action happened before the defendant assumed the office of President of the United States. In such a supposed case, two rights would stand somewhat in opposition; or better to say, to stand together, a situation not possible under the British Constitution of Blackstone, due to the maxim, "the king can do no wrong," but which can arise under the United States Constitution. These rights are (1) the plaintiff's right to apply to the courts for redress of injury and having his or her complaint properly heard and determined; versus (2) the President's duty by the Constitution that he shall take Care that the Laws be faithfully executed, and to preserve, protect and defend the Constitution of the United States. Part of the President's duty to preserve the Constitution is, plainly, to employ the executive power so as to support the right of plaintiffs to have their complaints heard and determined in the courts, and to that end, to support and attend the judiciary in its administration of the judicial proceedings. It appears that the reconciliation of these somewhat opposing rights that may occasionally arise, can be achieved by the honest exercise of the judicial and executive powers.
As the Article III mandates that the judicial power shall extend to all cases, &c., the President is required to answer any civil suit against him, which is filed in the United States Courts. In the present case of the supposed circumstances, namely, no alleged violations of federal law or the Constitution committed by the President, the President defendant could plea, should he deem it necessary,that in order to carry out his duties, the suit ought to be stayed, and therefore, he could request a stay, until such time as he can attend to the matter while in office, or until after he leaves office. In considering such dilatory plea the Court must pay regard to the President's constitutional duties, and his oath of office. There should be no presumption that the President is not faithful. (Keep in mind, a complaint filed in a court is an allegation of wrong doing; and as such, it is not a judicial determination or proof of wrong doing.
In this regard, Article III does not mandate a time table by which a suit is to be adjudicated. The declared object of the Constitution pertaining to suits in courts is only this: "to establish Justice." So, it appears that the Courts have the power to stay a suit against a President, should the President so request by a plea, provided that the complaintiff's allegations of wrong doing by the defendant President do not charge the President with violations of the Constitution or the laws or treaties of the United States. In view of the President's oath of office, and the Constitution's mandate that "he shall take Care that the Laws be faithfully executed," the Courts would be duty bound to accede to the President's request for a stay, as the judges are to be bound by oath "to support this Constitution;" their judgmental power then being confined to the judicial determination that the complain of a suit does not charge that the President has violated the laws of the United States (no charge that he is not taking care that the laws be faithfully executed), or worse, has violated the Constitution.
The oath of office taken by the President must be given due regard. The judiciary ought to rely on the President to do what he has promised to do, that is,
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
The President's duty is to execute the office of President so as to cooperate with the other departments of the Government to achieve the end "to establish Justice," thus, to take care to preserve the Constitution, including its objects.
The matter does not necessarily end there, however. For if the courts were to determine that the President must stand the suit, and issue an appropriate writ to that effect, commanding the President accordingly; the President could lay the writ aside (a kind of stay of the process), to attend to his constitutional duties, as he is mandated, "he shall take Care that the Laws be faithfully executed," should he determine that the suit does not alleged any violations of federal laws or the Constitution committed by the executive department of the Government, and that he cannot be distracted from his duties. For the President alone possesses the executive power of the Government; and he is duty bound to "take Care that the Laws be faithfully executed," and to "preserve, protect, and defend the Constitution of the United States." Also, he may be convinced on the basis of facts known to him that a court order commanding him to stand a civil suit is arbitrary and oppressive, and therefore contrary to the Constitution. He may have knowledge that a suit was supported and even instigated by his political detractors, an improper intermeddling in a private suit against him. Should the President's stay of the process be regarded as a criminal contempt of the Court, it would then be under the sole power of the House of Representatives to impeach the President of a criminal contempt of Court, and the sole power of the Senate to try the impeachment.
Suppose the United States was invaded by a military force made up of a coalition of European and South America nations, and in the midst of the invasion and the President's exited efforts to exercise the executive power of the Government to repel the invasion, a person sues the President on a charge of slander, and the court issues a writ commanding the President to stand the suit. Suppose the President laid the writ aside (stayed the process), in order to conduct the defensive war operations, and until such time as he could attend to the suit. Surely, the House of Representatives would not regard the President's act as a criminal contempt of court, but the faithful exercise of the President's duties mandated by the Constitution. Also, a decision to stay a suit against a President does not deny the plaintiff his right to have his injury redressed; it would merely be a judgment as to what temporary disposition is just and at the same time supports the Constitution with respect to the President's duties as mandated by the Constitution.
However, a delay of the suit could be unjust to the plaintiff. By delaying the suit, the day is prolonged when redress of the injury can be had, and opportunities for witnesses may vanish with time. Also, the plaintiff's strength to prosecute his claims diminishes; and he also loses the time of enjoying his life with the wrongs redressed. To meet this concern, the court of jurisdiction would be justified to enquire into the facts of the complaint, summoning a jury for this purpose, should the defendant President put in a dilatory plea, to determine whether or not a stay of the suit would be consonant with justice as well as the President's executive duties under the Constitution. For instance, the facts as alleged or admitted by the plaintiff might indicate a doubtful cause of action; for instance, if the plaintiff had plenty of opportunity to file a suit before the defendant assumed the office of President.
In the end the Courts have the judicial power to rule on the manner of proceeding with each specific case; but are bound to support the Constitution in its rulings. They have not a discretion power, as to protect a President from civil suits, but the duty to perform the judicial power in all cases arising under the Constitution and the laws of the United States, and to support the Constitution. And the President enjoys no constitutional immunity from civil suits. Again, allowing a dilatory please in a suit against a President could only be for causes in which the alleged wrong doing by the President does not include alleged violations of the laws and/or the Constitution of the United States committed by the President.(7)
It is another matter, however, if the complaint of a suit charges the President of violating the laws of the United States, or the Constitution, as in making war unconstitutionally. In such a case, the President could not properly plea for a stay of the suit on a ground that he has a duty to take Care that the Laws be faithfully executed, and to preserve the Constitution of the United States; for the very charge of this supposed case of a suit is that the President has violated the Constitution. The President's dilatory plea would amount to joining the issue of law, that is, a plea to the action: The suit charging him of violating the Constitution, and the President pleading for a stay in the suit because he must not be distracted from his efforts to preserve, protect and defend the Constitution.
The President could not invoke his duty to take care that the laws be faithfully executed, as a dilatory plea, since the issue of law presented to the court in the supposed suit is whether or not the President is carrying out his duties, by the charge that he has violated the Constitution or the laws of the United States. Again, the duty of the judiciary is to support the Constitution, not to protect the President while he proceeds to violate the Constitution.
Therefore, if a suit against a President alleges violations of the laws and/or the Constitution of the United States as part of the plaintiff's cause of action, then the Article II mandate that "he shall take Care that the Laws be faithfully executed" would provide no legal grounds for staying the suit, nor staying process; and then the plaintiff's right to have his or her cause heard and determined in the courts of justice would stand alone, not in beside a concurrent right of the President.
In summary, the Supreme Court opinion in Clinton v. Jones is wrong. The Court's holding that Presidents have immunity from civil law suits except in "appropriate circumstance" as the Courts determine at their discretion is not supported by any express provision of the Constitution. The Court opinion does not provide any analysis of the Constitution to support its opinion, and they could not do so. The Court's holdings are mere statements of opinion, which amounts to a claim of power to make and declare the supreme law of the land, irregardless of the specific directives of the Constitution. The Constitution expresses no grant of privilege to the President of immunity from civil suits, and therefore, he enjoys no such privilege as the Supreme Court has decreed but unconstitutionally, that is, without a plain foundation in the Constitution, and in contravention of the plain directives and provisions in the Constitution that bear on the matter.
The People who ordained the Constitution certainly understood and intended that a defendant of a law suit under Article III of the Constitution could make a dilatory plea in answer to a complaint. It was common law, and it is plainly implied by the meaning of the judicial power by that common law when the Constitution was ordained. But in deciding on such a plea the Courts must support the Constitution. Article III directs that the judicial power shall extend to all cases arising under the Constitution and the laws of the United States; and, therefore, the federal judiciary is bound to hear and determine every complaint that arises under the Constitution or the laws of the United States. But as to when the suit against a President is to be adjudicated, the Courts may grant the President's request (plea) for a stay of the suit, if the complaint alleges infringement of rights which do not include any charges of the President having violated the Constitution or the laws of the United States.
The Court opinion in Clinton v. Jones makes a mockery of the Constitution, by suggesting that the People who ordained the Constitution made a prescription for a constitution of the United States which is not intelligible: and that the true meaning of the Constitution cannot be determined and ascertained by study of the records of the making of the Constitution, of Blackstone's Commentaries on the Laws of England, of Vattel's The Law of Nations, and The Federalist, materials to which the Supreme Court has alluded by its expression "historical materials." Said the Supreme Court in Clinton v. Jones:
"In the end, as applied to the particular question before us, we reach the same conclusion about these historical materials that Justice Jackson described when confronted with an issue concerning the dimensions of the President's power. "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies sources on each side ... They largely cancel each other." " (p. 1645)
This is an insult to the Federal Convention of 1787 that laboriously and carefully ordained the Constitution. Instead of observing the plain, express directives set down in the Constitution, the Supreme Court has asserted and adhered to self-proclaimed rules or "doctrines," as "separation of powers," ""judicial discretion," "exceptional treatment," "appropriate circumstance," "Presidential privileges," "prerogatives" of the President, and "absolute immunities" for Presidents, doctrines not to be found or supported by any express provisions in the Constitution.
The judges of the Courts of the United States, especially the Supreme Court, were envisioned by the makers of the Constitution to be selected from among those persons who were learned in the study of law. To determine the true meaning of the Constitution is not all that difficult a study. One only needs to study the Constitution itself, Blackstone's Commentaries on the Laws of England, Vattel's The Law of Nations, The Federalist, and the Records of the Federal Convention, and the recorded debates of the States' conventions that ratified the Constitution. It is tractable. The Court, however, would like us to weigh the limitless number of "historical" opinions of unlimited number of statesmen made and recorded after the Constitution went into effect, opinions gleaned from diaries, letters, picnic speeches, and the like. Surely, whatever Jefferson or Marshall said or acted about the Constitution can not, and does not ipso facto, establish the true meaning of the Constitution which the People intended when they ordained and established it.
The Supreme Court doctrine of Presidential immunity from civil suits, except under "appropriate circumstance" at the discretion of the Courts, has been applied in such judicial rulings with the Supreme Court's theory of political questions that have dismissed suits against a President that charged him with making WAR in violation of the Constitution (unlawful killing of human creatures and destructions), thereby protecting Presidents Johnson and Nixon in prosecuting the Government's unconstitutional wars that destroyed a million of Vietnamese lives, wrecked the lives of three million American men who were sent to Vietnam (with about 50,000 killed and 300,000 maimed), and which nearly devastated that country, and which endangered nuclear war with the Soviet Union; while ordering a President to stand a "sexual harassment" suit, an "appropriate circumstance" for excepting the doctrine of presidential immunity: a suit that charges a President merely with sexually harassing the complaintiff some years before the defendant assumed the office as President of the United States: a suit that subjects the President to an illegal, unconstitutional compulsive examination, and to questions on extraneous matters. The Supreme Court doctrine has it as an inappropriate circumstance for a President to stand a suit that charges him with making war unconstitutionally, and therefore, killing human creatures unlawfully, and ordering the plaintiff to combat in such war. The Supreme Court doctrine is as tyrannical as it is arbitrary, oppressive, and wrong. Again, there is the matter of the judges not taking an unambiguous oath to support the Constitution of the United States, as Article VI of the Constitution requires.
The Supreme Court decision in Clinton v. Jones, therefore, was oppressive and violated the Constitution, but not because it ordered the President to stand the Paula Jones suit. For the judiciary is plainly directed by the Constitution to hear and determine all cases of civil suits which arise under the Constitution or the laws of the United States; although the Court could have stayed the suit, in order to support the directive of the Constitution that the President "shall take Care that the Laws be faithfully executed." The Supreme Court decision was oppressive because its basis is wrong, a doctrine of presidential immunity from suits, except at the discretion of the judiciary.
Moreover, the pressure on Mr. Clinton to seek a postponement of the Paula Jones civil suit would not have been strong, had the Supreme Court abided by the Constitution and not abolished the distinction between cases in law and cases in equity to require defendants to submit to a compulsive examination (not permitted in suits at law); and had the rules of evidence which the Courts applied in the Paula Jones suit not been that which were unconstitutionally made by the Supreme Court, specifically Rule 401 on "relevant evidence," but instead were the rules which consists with the definition of the judicial power as the people who made the Constitution certainly intended, and particularly the leading maxim on legal evidence as laid down in Blackstone's Commentaries, namely, to admit as evidence only that which demonstrates, makes clear, or ascertains the truth of the very fact in issue, instead of extraneous matters as "other women."
The Supreme Court decision was oppressive and did Mr. Clinton wrong, because the standards which the Court asserted and used to form its decision on Mr. Clinton's appeal are arbitrary and violate the Constitution, namely, the Supreme Court's doctrine of presidential immunity from civil suits, except in "appropriate circumstances" as determined by "judicial discretion." The Constitution confers on the President no such immunity. Moreover, the Court denied Mr. Clinton's motion for a stay of the suit without paying explicit regard to the express directive of the Constitution that the President "shall take Care that the Laws be faithfully executed," and to the President's oath of office that he "preserve, protect, and defend the Constitution of the United States;" and without enquiring into and weighing the facts of the Paula Jones complaint to determine whether the suit may be stayed without doing injustice to the plaintiff.
That the Supreme Court recognized that it has conferred upon a previous President an immunity privilege from a civil suit (Nixon in the Fitzgerald suit), but then the Court not allowing Mr. Clinton's motion for a mere stay of the Paula Jones suit, is plainly a tyrannical partiality, which, by the laws of England, according to Blackstone, would be a criminal offence an "offence against the public justice." Mr. Fitzgerald sued President Nixon for the suffering of his loss of job as an Air Force procurement officer, which he claimed, was an (illegal) "reprisal" for his revealing large cost overruns of Air Force contracts; thus charging, in effect, that President Nixon had not taken proper care, or took no care, to see that the laws were being faithfully executed in regards to the laws on public money appropriations for the military. Paula Jones, in contrast, filed a somewhat similar kind of complaint, namely, about an alleged reprisal affecting her job position; though the alleged wrong doing was not about the conduct of a person while holding the office of President. Moreover, when the Supreme Court decided the Fitzgerald petition, Nixon was no longer in office; and so the Court contrived a new doctrine about the extension of the President's immunity to apply even after the defendant is no longer President. The arbitrary caprice of the judges of the Supreme Court never ceases.
The alleged facts of the Paula Jones case, as recounted in Judge Wright's decision memorandum, indicate a doubtful cause of action as well, as demonstrated earlier. This, and the fact of outside support of the Paula Jones suit (intermeddling), with possible, indeed, probable, interests not really so much for the plaintiff's rights as for political goals of harassing and removing the President, including laying a "perjury trap," by means of the unconstitutional method of compulsory discovery (compulsive examination of the defendant under oath, by the unconstitutional Federal Rules of Civil Procedure), and the unconstitutional Federal Rules of Evidence, which illegally compelled the defendant Clinton to submit to examination on the extraneous matter of "sexual relations with other women," and illegally compelled other persons as well to be witnesses to such extraneous matters: interrogation of Mr. Clinton's private life with an unconstitutional "independent counsel" ready to "engage" (intermeddle) in any civil suit in however manner he judges necessary (including illegal secret microphone depositions taken of M. Lewinsky, which violated Amendment V of the Constitution, that protect a person from being compelled to be a witness against himself), all together grounds for staying the suit until he, Mr. Clinton, is no longer President, as he requested in his motion. Again, the suit did not charge Mr. Clinton of violating any federal laws or the Constitution.
There is another troubling aspect of the Court's treatment of defendant Clinton. Judge Wright's original decision, which the Supreme Court objected to, stayed the trial of the Paula Jones suit, although she ordered Mr. Clinton to submit to "discovery" that is, to submit to an examination in an oral deposition besides written interrogatories. If the trial could wait, then why could not also the discovery wait? Was an embarrassing examination of Mr. Clinton with temptations of perjury (of not telling the whole truth) the real interest of the Judiciary and the supporters of the Paula Jones suit?
Also, the Supreme Court reprimanded Judge Wright by pronouncing that she "abused" here "discretion" power by deferring the trial. But, members of the Supreme Court, by your opinion doctrine, does not the Court have the "judicial discretion" to meet out "exceptional treatment?" The reprimand word "abuse" levelled at Judge Wright by the Supreme Court is, therefore a further sign of the arbitrary caprice of the Supreme Court, and partiality against Mr. Clinton.
It is also important to point out that the Supreme Court in its opinion in Clinton v. Jones held:
"The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. ... As we have explained, especially in cases of extraordinary public moment, a plaintiff may be required to submit to delay not immoderate in extent and not oppressive in its consequence if the public welfare or convenience will thereby be promoted."
This opinion is also tyrannical by its definition. This rule puts something called the "public welfare," even the "public convenience," ahead of the rights of persons, and, therefore, is another rule of the judiciary for giving itself power to protect the unconstitutional activities and policies of the Government. The business of the United States Courts in civil actions, is not the rectifying of public wrongs, but the remedy of private wrongs. But more to the point of the present analysis, by the word "incident" in the Court's opinion, "an incident to its [District Court's] power to control its own docket," the Supreme Court asserts that the Courts of the United States have a "broad discretion to stay proceedings," and that this discretion power is conferred to the Courts by implication, admitting in effect that the discretion right is not expressed in the Constitution. Whereas, the directive of the Constitution that the President "shall take Care that the Laws be faithfully executed," is expressed. Therefore, the Supreme Court asserted and exercised discretion power that is not expressed, so as to defeat the express injunction of the Constitution that the President "shall take Care that the Laws be faithfully executed." Plainly, the Supreme Court acted not to support the Constitution, but to subvert it.
Also, it is interesting that the Supreme Court by its dictum recognized that a stay of a suit, or more precisely, a stay in the "proceedings" of a suit, can, under circumstances, be a proper ruling, as was deduced from the Constitution earlier in this present analysis. However, their stated criterion for staying proceedings, namely, the promotion of the public welfare, or less, public convenience, fails to include the directive of the Constitution that the President "shall take Care that the Laws be faithfully executed," thus again exhibiting a lack of support of the Constitution.
If a court judge has discretion power to "stay proceedings," as the Supreme Court opinion asserts, then why could not the Judge in the proceedings of a civil suit against the President of the United States stay those proceedings until the President is no longer in office? If the President by motion should request a stay, should not the Judge grant his request, in order to support the President's constitutional duty that "he shall take Care that the Laws be faithfully executed," that is, to support the Constitution? Indeed, in the Paula Jones suit itself, the Independent Counsel, in a motion to "intervene" in the suit's proceeding, requested the judge (Judge Wright) to grant a "stay of discovery," in order to promote or make secure his "criminal investigation." The Judge granted the Independent Counsel's motion. (A stay of discovery is an order to the parties of a suit to refrain from any further questioning of persons about certain matters defined in the order, in this case, matters pertinent to the Independent Counsel's criminal investigation.) Said the Independent Counsel in his report:
"On January 28, 1998, after the allegations about the President's relationship with Ms. Lewinsky became public, the OIC [Office of Independent Counsel] filed a Motion for Limited Intervention and a Stay of Discovery in Jones v. Clinton. The OIC argued that the civil discovery process should be halted because it was having a negative effect on the criminal investigation. The OIC represented to the Court that numerous individuals then under subpoena in Jones, including Monica Lewinsky, were integral to the OIC's investigation, and that courts routinely stayed discovery in such circumstances.11
The next day Judge Wright responded to the OIC's motion. The Court ruled that discovery would be permitted to continue, except to the extent that it sought information about Monica Lewinsky. The Court acknowledged that "evidence concerning Monica Lewinsky might be relevant to the issue in the [the Jones] case."12 It concluded, however, that this evidence was not "essential to the core issues in this case," and that some of that evidence "might even be inadmissible."13 The Court found that the potential value of this evidence was outweighed by the potential delay to the Jones case in continuing to seek discovery about Ms. Lewinsky.14 The Court also was concerned that the OIC's investigation "could be impaired and prejudiced were the Court to permit inquiry into the Lewinsky matter by the parties in this civil case."15
It is plainly contradictory for the Federal Judiciary to order the President of the United States to stand the Paula Jones suit, to deny his plea for a stay of the proceedings of the suit, while permitting as a rule of law, or "common law," the Independent Counsel to obtain a stay of proceedings in that very same civil suit. The duties of the Independent Counsel under the federal statutes ("law"), if there are any, surely have no priority over the President's duty as declared in the Constitution, that "he shall take Care that the Laws be faithfully executed."(!) Indeed, the Ethics in Government Act prescribes no duties for the officer or office of Independent Counsel to make investigations and prosecute any delinquents for crimes. By that Act, the Independent Counsel is vested with powers and rights, as pecuniary remunerations, with provisions for vesting him with a prosecutorial jurisdiction; but the Act imposes no substantive duties on him to conduct criminal investigations or prosecutions. (His duties are only of the nature of report this or that matter to the House of Representatives or the Division of the Court of Appeals for the District of Columbia.)
So, we see that the "common law" that the Courts make is as arbitrary as it is unconstitutional, not being vested by the Constitution with any legislative powers.
The Episode of the Aaron Burr Trial.
The Supreme Court in Clinton v. Jones misrepresented the episode of the Supreme Court's subpoena of President Jefferson in the Aaron Burr treason trial of 1807. Said the Court in Clinton v. Jones:
"Second, it is also settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed to the President." (p. 1649)
The Court quietly extrapolates from Judge Marshall's ruling to conclude that the President is subject to subpoena in a civil suit, as a witness, or the possessor of papers (evidence), and from there, that a President can be commanded, and indeed, compelled, by the court to stand a civil suit. But the Aaron Burr trial was for a criminal prosecution, a criminal suit. Under Amendment VI of the Constitution, the accused in a criminal prosecution shall enjoy the right to have compulsory process for obtaining witnesses in his favor. So, it appears that President Jefferson violated the Constitution by refusing to comply with the subpoena. But this matter, and Marshall's ruling, are not relevant to cases of civil suits, much less, cases of civil suits in which the President is a defendant.
To conclude, the Courts, including the Supreme Court, improperly considered Mr.Clinton's motion to stay the Paula Jones suit until he leaves office, by judging the motion, not on the basis of supporting the Constitution of the United States, as the Court gave no due weight to the Article II, Section 3 duty of the President to "take Care that the Laws be faithfully executed," nor the President's oath of office, but on the basis of Supreme Court doctrines of presidential privilege immunity from civil suits, subject to exceptions at the Court's discretion, a doctrine which violates the Constitution, namely, the Article III, Section, 2 requirement that the judicial power shall extend to all cases in law and equity arising under this Constitution, &c., and Amendment X of the Constitution, which declares that the powers not delegated to the United States by the Constitution are reserved to the States, respectively, or to the People, the Supreme Court not being permitted by the Constitution to assume any powers not delegated to it.
Therefore, the Courts did Mr. Clinton wrong by compelling him to stand the Paula Jones suit, and subject him to a compulsive examination by the plaintiff's attorneys. This wrong, coupled with the fact that the Rule 26 of the so-called Federal Rules of Civil Procedure, which requires a defendant to submit to examination, is plainly unconstitutional, being grounded on the unconstitutional abolishment of the Article III distinction in the Constitution between cases in law and cases in equity (unconstitutional compulsory discovery, as before discussed), plus the fact that the federal "rules" of evidence and the "rules" of civil procedure were made unconstitutionally by the Supreme Court, an unconstitutional assumption of legislative power, as those "rules" are laws of the highest gravity, and plus the fact that the rules of evidence upon which Judge Wright ordered Mr. Clinton to answer questions about "other women," plainly violate the maxims on legal evidence in usage when the Constitution was ordained and established, and therefore, violate the tenor of the judicial power which Article III of the Constitution vests in the Courts of the United States (also as before discussed), together ought to excuse Mr. Clinton of committing any perjury in his Paula Jones deposition (if in fact he did), since the deposition proceeding was illegal. The deposition brought about by an oppressive Supreme Court order to stand the Paula Jones suit that was founded on unconstitutional doctrine; a deposition ordered on the basis of unconstitutional Federal Rules of Civil Procedure (Rule 26 mainly); and a deposition conducted unconstitutionally under unconstitutional Federal Rules of Evidence allowing extraneous matters to be "relevant" for purposes of discovery.
To be sure, the President was in fact compelled to obey the unconstitutional court order, due to the Supreme Court's usurpation of the executive power, by its appointment and control (removal power) of the Supreme Court marshal, a law enforcement officers armed with full compulsion power. For had the President chose to refuse the Court order, on the ground that the Court acted unconstitutionally, he would probably have been subjected to the hard order of the Supreme Court marshal, and a criminal prosecution by the "independent counsel" for a contempt of Court offense, and God knows what then; whereas, such marshal and independent counsel are unconstitutional, usurpation of the executive power of the United States Government, which Article II of the Constitution vests in the President alone.
A Basis for staying the Paula Jones
until Mr. Clinton leaves Office
and also for judging the Materiality
of Discovery Questions of "other Women."
In regard to the question of materiality pertaining to an alleged or possible perjury in Mr. Clinton's deposition in the Paula Jones proceeding, and also the question of the reasonableness of Mr. Clinton's request for a stay of the suit until he leaves office, mention ought to be made of substantial evidence that indicates a doubtful cause of action for the Paula Jones suit. Judge Wright's decision memorandum in Paula Jones states that plaintiff Jones did not immediately leave the hotel room after the President suddenly took her hand and drew her close. Instead, she spoke about personal matters, as about Mr. Clinton's wife, and then "sat on a sofa." This could have been taken as a sign of not rejecting the alleged first sexual advance, thus encouraging the hope of success in a second try and by a bolder advance. Also, after entering the room she participated, again, according to the judge's memorandum, for "a few minutes in small talk." But, should not a woman know that when she is invited into a hotel room alone with a man, she should expect, if the meeting is purely for official government business, as a Governor, that he would have gone right to the point of the official business, like offering her a job, and had an assistant present as well?
Blackstone's Commentaries discusses the problem of judging the credibility of a women accusing of being raped. He wrote that if the event took place (against the woman's will) where other people were close by but heard no screams, the credibility of the accuser would be in some doubt. By the facts given in Judge Wright's memorandum, it would appear that plaintiff Jones's cause is not altogether sound, a hesitation not to quit the meeting upon the obvious signs of sexual advance, creates a doubt which ought to have caused the Court to deny the line of discovery questions about Mr. Clinton's "other women." Such a consideration ought also to be factored in any lawful enquiry of criminal perjury, of whether the perjury was material to the issue.
On another point, the judge in Paula Jones had violated the Constitution by depriving the plaintiff of a jury trial, as plainly the judge had judged the facts of the case in her "summary judgement;" whereas, according to Amendment VII of the Constitution, the jury is to examine and judge the facts in issue.
1. The "modern" conditions of America of high technology and industry, and a vast military establishment, was effected in large part by the erroneous opinions of the Supreme Court, as in the cases McCulloch v. Maryland and United States v. Curtiss-Wright, that have given to the United States Government a "vast mass of incidental powers" for the Congress to chose at its discretion, and to the President complete control of foreign policy, powers used to erect banks, to emit paper money and checking account money for loans, to conscript men into the military, to make wars aboard for the defense of other nations and world policing, instead of confining the military and naval power of the United States to the constitutional object of "providing for the common defense of the United States" (that is, the United States only!), to build up an absolutely enormous armed forces establishment for the unconstitutional objects of world policing, to build roads and airports, to promote nuclear power plants, to erect huge laboratories, and so on ad infinitum all to effect a highly industrialized and military way of life, but all in violation of the Constitution, as the Constitution does not vest in the Congress and the President such powers. So, the unconstitutional opinions of the Supreme Court have acted to protect the United States Government to create unlawfully (unconstitutionally) the very "modern conditions" about which the Supreme Court in Clinton v. Jones now says preclude a scholarly determination of how the "forefathers" would have envisioned the "dimensions" of the President's power under these modern conditions. However, the usurpations of power by the Supreme Court, the Congress, and the President do not change the true meaning of the Constitution, which can always be determined by honest scholarly study. The reader is referred to this Author's critical reviews of the Supreme Court opinion in McCulloch v. Maryland and Curtiss-Wright; his book, The Accident Hazards of Nuclear Power Plants (University of Massachusetts Press, 1976), chapter 13 on "Who should Decide?", which gives a short proof of the unconstitutionality of the Atomic Energy Act of the United States Congress; his paper Unconstitutional Government in America: Sketch of an Analysis of the Constitution with respect to Foreign and Domestic Affairs; and his Analysis of the Constitution with respect to the Authority to make War and Alliances, and the Employment of Force against Iraq, and Addendum and Supplement; and also his article "Treaty Making and the President's Obligation to Seek the Advice and Consent of the Senate with Special Reference to the Vietnam Peace Negotiations," Ohio State Law Journal, Vol. 31, No. 3 (1970).
2. Vattel's The Law of Nations, stated the same principle:
"Confusion, disorder, and despondency will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes; without this, the civil virtues will become extinguished, and the society weakened.
"The best and safest method of distributing justice is by establishing judges, distinguished by their integrity and knowledge, to take cognisance of all the disputes that may arise between the citizens." (Book II, § 158, § 163.)
3. The Records of the Federal Convention of 1787, Max Farrand, 1937 Revised Edition,Yale University Press, Vol. II, page 186, August 6.
4. Another example of occasional contradictions is when the Supreme Court in 1936, in U.S. v. Curtiss-Wright (299 U.S. 304), contradicted the Supreme Court opinion in McCulloch v. Maryland, by asserting that the United States Government is vested with "external sovereignty powers" powers to act in the field of "international relations" that are independent of the "enumerated powers" of the Constitution, that the Government derives these powers from a source outside the Constitution, namely, the Crown of Great Britain.
5. Of course, the Court's judgment in a particular case is the sentence of the law for that case; but the Court's opinion is not the law of the land for conferring powers to the Government.
6. As mentioned earlier, the judges of the United States Courts have evidently not taken the oath as required by Article VI of the Constitution, "to support this Constitution" pure and simple; but instead have taken a qualified and ambiguous oath.
7. The difficult problem today of weighing a plaintiff's rights to have his cause heard and determined in a civil suit against the President of the United States, because of the evident "awesome" present responsibilities of the President, is due to the United States Government usurping powers and expanding the territory of the United States, and expanding the activities of the United States Government, beyond the bounds allowed by the Constitution; as the Government has assumed, beginning with President Wilson, the power to defend other nations in their wars and quarrels, and generally, to assume a world police power, or world government authority, in violation of the declared objects of the Constitution, which are limited to that of providing for the common defence of the United States only!.
This unconstitutional expansion of the sphere of activities of the United States Government in regards to military and naval power has involved the United States in wars throughout most of this century and resulted in a absolutely enormous build-up of the military and now space establishments with bases and military power projections all over the globe; and an absolutely enormous industrial and businesses establishments directly and indirectly to produce the equipment and supplies, and otherwise, to support these armed forces and space personnel. The industrial needs to support this unconstitutional "international security" activities of the United States Government has led the Government to usurp the domestic affairs powers of the States, including assuming the powers to promote and license nuclear power plants, to build roads, super-highways, and airports, to subsidize and direct science and the developments of technology, to grant subsidies to universities, laboratories, to erect banks and create money, and to manage virtually every other matter in the in the country (health finance, education, labor, education, crime control, pollution controls, and so on ad infinitum). The result has been the United States Government assuming unconstitutional powers over the whole life of the country, practically every activity and property. Furthermore, the United States Government assumed unconstitutional the power to acquire territory, as the Louisiana Purchase, then the wars against Mexico, then Texas, the so-called "manifest destiny." The Constitution vests in the Congress the power to "dispose" of the territory belonging to the United States, but not to acquire territory.
So, the United States Government has expanded its control over much more country than the makers of the Constitution intended! Finally, the Congress has passed innumerable number of laws transferring to the President all sorts of legislative powers; and then the President have assumed the power to make war without a prior declaration of war by the Congress. (The Congress cannot declare war for any purpose they please, as for the defence of a foreign nation, as in response to an attack on our ocean and naval war ships which seek to deliver aid to a nation at war and to protect that delivery; for the objects of the Constitution are expressly limited to the providing for the common defence of the United States, not the defence of other nations.) The result of all this usurpation of power of unconstitutional concentration of power by the United States Government , the power and concerns of the Office of President have become absolutely enormous. This enormity of Presidential power, accumulated unconstitutionally, is then used as a basis to deny any citizen the right to sue the President for breach of the Constitution, as an unconstitutional war, because such a suit would interfere in the President's awesome responsibilities. Such is but a part of the horrible state of affairs of the unconstitutional Government in America.