WILL SHE HAVE HER DAY IN COURT ?

By ADAM COHEN

The Clinton camp's public response to Paula Jones' sexual-harassment suit has been what could be called the "big-hair defense"--jokes about her working-class origins and bravado that this evangelist's daughter from Lonoke, Arkansas, could not possibly win a "he said, she said" dispute with the President of the United States. Former Clinton adviser James Carville wisecracked that if you "drag $100 bills through trailer parks, there's no telling what you'll find." Clinton lawyer Bob Bennett has dismissed the suit as "tabloid trash with a legal caption on it" and once boasted that in a trial he could win the case in 20 minutes.

But quietly, in the legal arena, Clinton has pinned his hopes on a more cautious strategy: asserting that the Constitution protects sitting Presidents from having to answer civil lawsuits. Clinton v. Jones, which is being argued in the Supreme Court this week, promises to be the most important "presidential privilege" case since the court ordered Nixon to hand over the Watergate tapes, despite his claims of confidentiality, because they were needed for a criminal prosecution. And it is shaping up to be a virtual must-win legal battle for Clinton, who is asking the Supreme Court to move beyond existing precedents--the court has as yet never decided whether a President can be sued for actions taken before he took office--to protect him from what could be the most embarrassing controversy of his presidency.

Jones' road to the Supreme Court has been a rocky one. Her well-known claim is that Clinton saw her working at a Governor's Quality Management Conference in Little Rock five years ago, sent a state trooper to bring her to his hotel room and ended up pulling down his pants and asking her to "kiss it." From the day she went public with her allegations, Jones has been dogged by trouble, from a brother-in-law who went on television to doubt her (he now says he believes her) to old photos of her that were published in Penthouse. And by making an appearance on Pat Robertson's 700 Club television show, and another with the Conservative Political Action Conference, Jones fueled suspicions that her suit was politically motivated.

But recently Jones' claims have been receiving a more respectful hearing. Stuart Taylor, a former New York Times reporter who now works for the American Lawyer, has become Jones' most prominent champion, arguing that hers is a strong case of sexual harassment. Taylor notes, for example, that there is solid corroborating evidence: that within a day of the alleged encounter, Jones told two friends and two sisters what happened and that her story has remained consistent. And after some investigation, Taylor found that she was fundamentally apolitical and didn't consort with Clinton enemies until after she failed to be taken seriously.

The issue before the Supreme Court this week, however, is not the substance of Jones' suit but whether it should go forward now. The court has previously recognized the principle of immunity for official presidential acts, but it has never extended the doctrine to acts that occurred before a President took office. Clinton, who has denied Jones' allegations and said he has no recollection of ever meeting her, is asking the court to hold that presidential immunity requires that Jones' lawsuit wait until he leaves office.

Clinton's main argument for recognizing this kind of "temporary immunity" is that a President should not be required to drop affairs of state every time someone decides to sue. If this door is opened, the argument goes, Presidents will be besieged by politically motivated lawsuits. "It's really about the people's interest in having the President at his desk doing the job they elected him to do," says Stanford law professor Kathleen Sullivan, who signed a pro-Clinton brief.

But to Jones' supporters, the issue is whether the President is above the law. Duke law professor William Van Alstyne says a ruling for Clinton would be "monarchy on the installment plan." Jones' lawyers contend that her case is not about dollars--she has said she would give any damages money left after she paid her attorneys to charity--but reputation. "It's had an emotional toll on her that people are calling her a bimbo, trailer-park trash, a gold digger," says Jones' lawyer, Joseph Cammarata, who argues she should not have to wait until 2001 to begin clearing her name. He also contends that the burden on Clinton of proceeding with the lawsuit has been overstated. "This President goes on vacation, he plays golf in Hawaii and Australia, he jogs, he even wrote a book while in office," Cammarata says. "The duties of the office of President are not unremitting."

The Supreme Court could decide to take a middle course. That would mean putting off the actual trial but allowing pre-trial "discovery," including questioning of the principals and potential witnesses. But it is not clear that it would help Clinton much. Discovery can be more intrusive than a trial; Jones' lawyers might be inclined to dig into peripheral matters such as other sexual incidents involving the President. And even if depositions were taken under seal, it is unlikely that even a sealed deposition of the President would actually remain secret.

It is always difficult to predict what the Supreme Court will do, and almost everyone agrees this is a close case. (The two federal courts to hear it so far have split, with Clinton winning at the trial level and Jones on appeal.) But there are good reasons to believe that the court may be reluctant to allow Jones' suit to go forward. The Supreme Court generally treads lightly in "separation of powers" cases, where one of the three branches of government is being subjected to the dictates of another. If Jones won, the President would in theory have to answer to any of the 586 of U.S. District Court judges who might choose to haul him into their courtroom if cases are filed against him. And opening a President up to litigation like Jones' would inevitably diminish the stature of the office. "Much of what Presidents rely on is their power of persuasion," notes presidential historian Michael Beschloss. "It is very hard for them to be persuasive if what is being heard is this kind of low stuff."

Further complicating the case are some unusual court dynamics. The most conservative Justices, like Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, who may be least warmly inclined toward this particular President, have been the most philosophically committed to a strong presidency. More liberal members, who are more open to the general idea of allowing a President to be sued, may have more sympathy for this President, who elevated two of them to the bench. Justice Ruth Bader Ginsburg may be in the toughest position of all. As a former women's-rights litigator and a Supreme Court moderate, she is certainly a potential Jones vote. But with the Washington rumor mill saying Clinton will appoint her Chief Justice if Rehnquist retires, it could be a hard time for any judge in her position to rule against the President in a major case.

In the end, the deciding factor may be one that should, as a legal matter, be irrelevant: the raw quality of Jones' allegations. A decision in her favor would open the President up not to a run-of-the-mill civil lawsuit but a potentially lurid judicial voyage through a world of alleged use of state troopers to procure women, and purported "bimbo eruptions." Clinton would no doubt be questioned about contentions like paragraph 22 of Jones' complaint: that "[t]here were distinguishing characteristics in Clinton's genital area that were obvious to Jones." Even Justices reluctant to extend presidential privilege may feel that there are some questions the leader of the free world should not have to answer.