Albert E. Jenner, the son of a police officer was born in Chicago on 20th June, 1907. He grew up in Canaryville, on the south side of the city. A talented sportsman he earned extra money while at college as a professional boxer, fighting six-round matches at $50 each.
Jenner attended the University of Illinois. He was also circulation manager at the Daily Illini, the student newspaper. He later married Nadine Newbill, a reporter on the newspaper.
Jenner spent a year in law school before joining the legal firm of Poppenheusen, Johnston, Thompson and Cole. He became a partner of the firm in January 1939. During this period Jenner developed relationships with several prominent clients, most notably Henry Crown, the principal shareholder in General Dynamics.
In 1947 he became the president of the Illinois State Bar Association. In 1951, President Harry S. Truman appointed Jenner to serve on the National United States Loyalty Review Board and four years later he became a name partner at the firm. (The firm eventually changed its name to Jenner & Block).
In 1963 J. Lee Rankin, chief counsel of the Warren Commission, appointed Jenner as a senior counsel that investigated the assassination of President John F. Kennedy. As Russ Baker, the author of Family of Secrets (2009), has pointed out: "Albert Jenner was truly a curious choice for the commission staff. He was fundamentally a creature of the anti-Kennedy milieu - a corporate lawyer whose principal work was defending large companies against government trust-busting... Jenner's most important client was Chicago financier Henry Crown, who was the principal shareholder in General Dynamics, then the nation's largest defense contractor and a major employer in the Fort Worth area."
Jenner headed the team that looked into the life of Lee Harvey Oswald. This included several interviews with George de Mohrenschildt. His chapter of the report was called: "Oswald's Background History, Acquaintances and Motives."
After the assassinations of Martin Luther King and Robert F. Kennedy in 1968, President Lyndon B. Johnson appointed Jenner to the U.S. National Commission on the Causes and Prevention of Violence (NCCPV) that was chaired by Milton S. Eisenhower.
In June 1968, Earl Warren retired as Chief Justice of the Supreme Court. Johnson had no hesitation in appointing Abe Fortas as his replacement. Clark Clifford suggested that Jenner should replace Fortas. However, Johnson appointed another friend from Texas, Homer Thornberry, instead.
The Senate had doubts about the wisdom of Fortas becoming Chief Justice. It was later discovered that Fortas had lied when he appeared before the Senate Judiciary Committee. It was also revealed that a convicted financier named Louis Wolfson had agreed to pay Fortas $20,000 per year for the remainder of his life. This arrangement was condemned as ethically improper and Fortas was forced to resign from the Supreme Court in May 1969. Johnson was also forced to withdraw the name of Thornberry.
In 1969, Sherman Skolnick, head of the Citizens' Committee to Clean Up the Courts, examined the stockholder records and discovered that Chief Justice Roy Solfisburg and former Chief Justice Ray Klingbiel both owned stock in the Civic Center Bank & Trust Company (CCB) of Chicago at the same time that litigation involving the CCB was pending at the Illinois Supreme Court. Skolnick contacted several members of the media and eventually this information was published by all the major papers.
Jenner was asked to take part in this investigation that was being led by John Paul Stephens. The commission discovered that Solfisburg and Klingbiel had received the stock as a gift before the decision about the Civic Center Bank & Trust Company was made by the Illinois Supreme Court. When the commission reported back, it recommended that both Klingbiel and Solfisburg resign, which they did a short time later.
In 1973 the Republicans on the House Judiciary Committee named Jenner as the Committee's Chief Minority Counsel. He therefore took part into the HSC investigations into the Watergate allegations against Richard M. Nixon. Jenner was ultimately forced to resign as special counsel when he recommended the impeachment of Nixon.
Jenner was a director of General Dynamics and the chairman of the of Judicial Selection Committee of the American Bar Association. He also served on the Board of Governors of the NAACP Legal Defense Fund and as the president of the American Judicature Society.
Albert E. Jenner died on 18th September, 1988.
Commission assistant counsel Albert E. Jenner Jr. was the staffer who conducted the interrogations of George and Jeanne de Mohrenschildt, which lasted two and a half days. As he did with several other key witnesses, Jenner had private conversations with George de Mohrenschildt both inside and outside the hearing room. Perhaps to ensure that he would not be accused of something underhanded, he went out of his way to state the fact of those outside consultations for the record.' Aside from asking de Mohrenschildt, on the record, to verify that everything they had discussed privately was reiterated in the public session, Jenner never made clear what the subject matter of those private conversations was.
The transcript of the de Mohrenschildts' testimony runs 165 pages." It reveals George to be a remarkably interesting, dynamic character, whose life resembled that of a fictional adventurer. But numerous points of his testimony, especially relating to his background and connections, cried out for further scrutiny. Instead, Jenner consistently demonstrated that he was either incompetent or deliberately incurious when it came to learning anything useful about de Mohrenschildt.
To wit, here is an exchange between Jenner and de Mohrenschildt, in Washington, on April 22, 1964, with a historian, Dr. Alfred Goldberg, present. Jenner, who had already read extensive FBI reports on de Mohrenschildt, could be forceful when he wanted answers. But most of his moves were away from substance. He seemed determined to reach the commissions conclusion that de Mohrenschildt was a "highly individualistic person of varied interests," and nothing more. In fact, Jenner stonewalled so assiduously that even de Mohrenschildt registered amazement:
MR. JENNER: You are 6' 1", are you not?
MR. DE MOHRENSCHILDT: Yes.
MR. JENNER: And now you weigh, I would say, about 195?
MR. DE MOHRENSCHILDT: That is right.
MR. JENNER: Back in those days you weighed around 180.
MR. JENNER: You are athletically inclined?
MR. JENNER: And you have dark hair.
MR. DE MOHRENSCHILDT: No gray hairs yet.
MR. JENNER: And you have a tanned-you are quite tanned, are you not?
MR. DE MOHRENSCHILDT: Yes, sir.
MR. JENNER: And you are an outdoors man?
MR. DE MOHRENSCHILDT: Yes. I have to tell you-I never expected you to ask me such questions.
Why was Jenner even on the commission staff? Chairman Warren offered an oblique justification for his hiring that perhaps was more revealing than the chief justice intended. He was a "lawyer's lawyer," Warren said, and a "businessman lawyer" who had gotten good marks from a couple of unnamed individuals. Commission member John McCloy timidly inquired whether they shouldn't hire people with deep experience in criminal investigations. "I have a feeling that maybe somebody who is dealing with government or federal criminal matters would be useful in this thing." Warren then implied that this was unnecessary because the attorney general (Robert Kennedy) and FBI director (J. Edgar Hoover) would be involved, totally ignoring the strong personal stakes of both officials in the outcome - and the strong animosity between them. Allen Dulles said little during this discussion of Jenner.
Harvey Oswald, doublecrossed and sitting in jail, posed a grave danger. This problem was eliminated when Jack Ruby killed Harvey two days after the assassination. Mortician Paul Groody was asked twice if he noted a mastoid scar on the left side of Oswald's neck or scars near his left elbow. In 1945 Lee Oswald had a mastoidectomy operation at Harris Hospital in Fort Worth. A three-inch mastoid scar was noted on his Marine medical records. In 1957, Lee shot himself in the arm with a .22 Derringer. Yet neither the three-inch mastoid scar nor scars from the bullet wounds were observed by Groody or noted on his 1963 report. Jack Ruby shot Harvey Oswald, who had no such scars.
A few people in the FBI and on the Warren Commission staff knew about the Oswald problem, and how to handle it. The task of acquiring background information on Marguerite and Lee Oswald was assigned to Warren Commission staff attorney John Ely. His report was given to Warren Commission attorney Albert Jenner. Jenner then wrote to Chief Counsel J. Lee Rankin telling him that the background information on Marguerite and Lee Oswald would require material alteration and in some cases, omission. Mr. Ely's original memoranda and notes are missing from the record. Other background information on Marguerite and Lee is missing as well. The New York school and court records and documents relating to Oswald's family history from 1953 are marked "FBI-missing; Liebeler has" indicating that the missing documents were last known to be in Warren Commission Attorney Liebeler's possession. This document shows the "biographical information on Mrs. Oswald and her relatives" has been withheld by the CIA.
Warren Commission members Hale Boggs and Richard Russell were not fooled. They suspected a conspiracy. Boggs expressed his doubts and was advocating a reopening of the investigation. However, before he was able to introduce a bill reopening the case, he and Alaska Senator Nick Begich disappeared on a flight from Anchorage to Juneau. Hundreds of Coast Guard, military and civilian aircraft searched for weeks, but no trace of the plane was ever found. In early 1964 Richard Russell was very troubled and asked Army Intelligence Colonel Phillip Corso to quietly conduct an investigation into the "Oswald matter." Corso soon reported to Senator Russell that there had been two United States Passports issued to Lee Harvey Oswald, and had been used by two different men. He obtained this information from the head of the U.S. Passport office, Francis Knight. He also reported to Senator Russell there were two birth certificates in the name of Lee Harvey Oswald and they too had been used by two different people. He obtained this information from William Sullivan-head of the FBI's Domestic Intelligence Division. Corso said he and Senator Russell concluded the assassination had been a conspiracy.
JONES v. United States of America Akhil Reed Amar, Southmayd Professor of Law Yale Law School Susan Low Bloch, Professor of Law, Georgetown Law School Harold H. Bruff, Donald Phillip Rothschild Research Professor, George Washington University National Law Center Susan Estrich, Robert Kingsley Professor of Law and Political Science, University of Southern California Law Center Richard H. Fallon, Jr., Professor of Law, Harvard Law School Daniel A. Farber, Henry J. Fletcher Professor & Associate Dean, University of Minnesota Law School Philip P. Frickey, Faegre & Benson Professor, University of Minnesota Law School Paul D. Gewirtz, Potter Stewart Professor of Constitutional Law, Yale Law School Gerald Gunther, William Nelson Cromwell Professor, Stanford Law School John C. Jeffries, Jr., Emerson G. Spies Professor and Horace W. Goldsmith Research Professor and Academic Associate Dean, University of Virginia School of Law Sanford Levinson, W. St. John Garwood & W. St. John Garwood Jr. Regents Chair in Law, University of Texas School of Law Burke Marshall, Nicholas deB. Katzenbach Professor Emeritus, Yale Law School Judith Resnik, Orrin B. Evans Professor, University of Southern California Law Center Suzanna Sherry, Earl R. Larson Professor, University of Minnesota Law School Steven H. Shiffrin, Professor of Law, Cornell Law School Kathleen M. Sullivan, Professor of Law, Stanford Law School Laurence H. Tribe, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School The American Civil Liberties Union Foundation Stephen B. Burbank, Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School William Cohen, C. Wendell and Edith M. Carlsmith Professor of Law, Stanford University Law School Larry Kramer, Professor of Law, New York University Law School Deborah J. Merritt, Professor of Law and Women's Studies, University of Illinois College of Law Geoffrey P. Miller, Kirkland & Ellis Professor of Law, The University of Chicago Law School Robert F. Nagel, Ira Rothgerber Professor of Constitutional Law, University of Colorado Law School Richard Parker, Professor of Law, Harvard Law School L.A. Scot Powe, Jr., Anne Green Regent Professor of Law, University of Texas Law School Stephen B. Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law Ronald D. Rotunda, Albert E. Jenner, Jr. Professor of Law, University of Illinois College of Law William Van Alstyne, William R. and Thomas C. Perkins Professor of Law, Duke University School of Law, Amicus Curiae.
Paula Corbin JONES, Appellee-Cross-Appellant, v. William Jefferson CLINTON, Appellant-Cross-Appellee. Danny Ferguson, Defendant. United States of America Akhil Reed Amar, Southmayd Professor of Law Yale Law School Susan Low Bloch, Professor of Law, Georgetown Law School Harold H. Bruff, Donald Phillip Rothschild Research Professor, George Washington University National Law Center Susan Estrich, Robert Kingsley Professor of Law and Political Science, University of Southern California Law Center Richard H. Fallon, Jr., Professor of Law, Harvard Law School Daniel A. Farber, Henry J. Fletcher Professor & Associate Dean, University of Minnesota Law School Philip P. Frickey, Faegre & Benson Professor, University of Minnesota Law School Paul D. Gewirtz, Potter Stewart Professor of Constitutional Law, Yale Law School Gerald Gunther, William Nelson Cromwell Professor, Stanford Law School John C. Jeffries, Jr., Emerson G. Spies Professor and Horace W. Goldsmith Research Professor and Academic Associate Dean, University of Virginia School of Law Sanford Levinson, W. St. John Garwood & W. St. John Garwood Jr. Regents Chair in Law, University of Texas School of Law Burke Marshall, Nicholas deB. Katzenbach Professor Emeritus, Yale Law School Judith Resnik, Orrin B. Evans Professor, University of Southern California Law Center Suzanna Sherry, Earl R. Larson Professor, University of Minnesota Law School Steven H. Shiffrin, Professor of Law, Cornell Law School Kathleen M. Sullivan, Professor of Law, Stanford Law School Laurence H. Tribe, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School The American Civil Liberties Union Foundation Stephen B. Burbank, Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School William Cohen, C. Wendell and Edith M. Carlsmith Professor of Law, Stanford University Law School Larry Kramer, Professor of Law, New York University Law School Deborah J. Merritt, Professor of Law and Women's Studies, University of Illinois College of Law Geoffrey P. Miller, Kirkland & Ellis Professor of Law, The University of Chicago Law School Robert F. Nagel, Ira Rothgerber Professor of Constitutional Law, University of Colorado Law School Richard Parker, Professor of Law, Harvard Law School L.A. Scot Powe, Jr., Anne Green Regent Professor of Law, University of Texas Law School Stephen B. Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law Ronald D. Rotunda, Albert E. Jenner, Jr. Professor of Law, University of Illinois College of Law William Van Alstyne, William R. and Thomas C. Perkins Professor of Law, Duke University School of Law, Amicus Curiae.
Nos. 95-1050, 95-1167.
Decided: January 09, 1996
We have before us in this appeal the novel question whether the person currently serving as President of the United States is entitled to immunity from civil liability for his unofficial acts, i.e., for acts committed by him in his personal capacity rather than in his capacity as President. William Jefferson Clinton, who here is sued personally, and not as President, appeals from the District Court's decision staying trial proceedings, for the duration of his presidency, on claims brought against him by Paula Corbin Jones. He argues that the court instead should have dismissed Mrs. Jones's suit without prejudice to the refiling of her suit when he no longer is President. Mr. Clinton also challenges the District Court's decision to allow discovery to proceed in the case during the stay of the trial. Mrs. Jones cross-appeals, seeking to have the stays entered by the District Court lifted, so that she might proceed to trial on her claims. 1 We affirm in part and reverse in part, and remand to the District Court. 2
On May 6, 1994, Mrs. Jones filed suit in the District Court against Mr. Clinton and Danny Ferguson, an Arkansas State Trooper who was assigned to Mr. Clinton's security detail during his tenure as governor of Arkansas, for actions alleged to have occurred beginning with an incident in a Little Rock, Arkansas, hotel suite on May 8, 1991, when Mr. Clinton was governor and Mrs. Jones was a state employee. Pursuant to 42 U.S.C. § 1983 (1988), Mrs. Jones alleges that Mr. Clinton, under color of state law, violated her constitutional rights to equal protection and due process by sexually harassing and assaulting her. She further alleges that Mr. Clinton and Trooper Ferguson conspired to violate those rights, a claim she brings under 42 U.S.C. § 1985 (1988). Her complaint also includes two supplemental state law claims, one against Mr. Clinton for intentional infliction of emotional distress and the other against both Mr. Clinton and Trooper Ferguson for defamation.
Mr. Clinton, asserting a claim of immunity from civil suit, filed a motion to dismiss the complaint without prejudice to its refiling when he is no longer President or, in the alternative, for a stay of the proceedings for so long as he is President. On December 28, 1994, the District Court, rejecting the application of absolute immunity, denied Mr. Clinton's motion to dismiss the complaint. The court did find, however, that for separation of powers reasons Mr. Clinton was entitled to a “temporary or limited immunity from trial,” 3 and thus granted his request to stay the trial for the duration of Mr. Clinton's service as President. Jones v. Clinton, 869 F.Supp. 690, 699 (E.D.Ark.1994). Concluding that the claims against Trooper Ferguson are factually and legally intertwined with the claims against Mr. Clinton, the court also stayed the trial against Trooper Ferguson for as long as Mr. Clinton is President, but permitted discovery on Mrs. Jones's claims against both Mr. Clinton and Trooper Ferguson to go forward. On appeal, Mr. Clinton seeks reversal of the District Court's rejection of his motion to dismiss the complaint on the ground of presidential immunity and asks us to order that court to dismiss Mrs. Jones's action in its entirety, without prejudice. In the alternative, he asks this Court to reverse the decision denying his motion to stay discovery. Mrs. Jones cross-appeals the District Court's decision to stay the trial of her claims against both Mr. Clinton and Trooper Ferguson. 4
Mr. Clinton argues that this suit should be dismissed solely because of his status as President. The immunity he seeks would protect him for as long as he is President, but would expire when his presidency has been completed. The question before us, then, is whether the President is entitled to immunity, for as long as he is President, from civil suits alleging actionable behavior by him in his private capacity rather than in his official capacity as President. We hold that he is not.
We start with the truism that Article II of the Constitution, which vests the executive power of the federal government in the President, did not create a monarchy. The President is cloaked with none of the attributes of sovereign immunity. To the contrary, the President, like all other government officials, is subject to the same laws that apply to all other members of our society. As the Supreme Court has observed, “Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law․” Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978). Nevertheless, mindful that for the sake of the nation's general good the Constitution empowers officials to act within the scope of their official responsibilities, the Supreme Court has recognized “that there are some officials whose special functions require a full exemption from liability” for their performance of official acts. Id. at 508, 98 S.Ct. at 2911. The list of those entitled to absolute immunity from civil liability includes the President of the United States for his official acts, Nixon v. Fitzgerald, 457 U.S. 731, 756, 102 S.Ct. 2690, 2704, 73 L.Ed.2d 349 (1982) members of Congress for their legislative acts, regardless of motive, under the Speech and Debate Clause, U.S. Const. art. I, § 6, Dombrowski v. Eastland, 387 U.S. 82, 84-85, 87 S.Ct. 1425, 1427-28, 18 L.Ed.2d 577 (1967) (per curiam) Tenney v. Brandhove, 341 U.S. 367, 372, 377, 71 S.Ct. 783, 786, 788, 95 L.Ed. 1019 (1951) judges in courts of general jurisdiction for judicial acts, Stump v. Sparkman, 435 U.S. 349, 359-60, 98 S.Ct. 1099, 1106-07, 55 L.Ed.2d 331 (1978) Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) prosecutors for prosecutorial functions, Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976) and certain executive officials performing certain judicial and prosecutorial functions in their official capacities, Butz, 438 U.S. at 514-15, 98 S.Ct. at 2914-15. In addition, witnesses are entitled to absolute immunity from civil suit for testimony given in judicial proceedings, Briscoe v. LaHue, 460 U.S. 325, 334, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983), and even government officials whose special functions do not require a full exemption from liability may have a more limited qualified immunity for their official acts, e.g., Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978) (prison officials) Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 1000-01, 43 L.Ed.2d 214 (1975) (school officials) Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974) (officers of the Executive Branch) Pierson, 386 U.S. at 557, 87 S.Ct. at 1219 (police officers making an arrest). We are unaware, however, of any case in which any public official ever has been granted any immunity from suit for his unofficial acts, and neither the Supreme Court nor any other court, the District Court excepted, appears to have addressed the precise issue before us today: whether the President is entitled to immunity for the duration of his presidency when sued for his unofficial actions.
The immunity that has been found for official acts is not the product of a prudential doctrine created by the courts and is not to be granted as a matter of judicial largesse. Cf. Imbler, 424 U.S. at 421, 96 S.Ct. at 990-91 (“[O]ur earlier decisions on § 1983 immunities were not products of judicial fiat that officials in different branches of government are differently amenable to suit under § 1983.”). Rather, the question whether to grant immunity to a government official is “guided by the Constitution, federal statutes, and history” and is informed by public policy. Fitzgerald, 457 U.S. at 747, 102 S.Ct. at 2700. “In the case of the President the inquiries into history and policy ․ tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure.” Id. at 748, 102 S.Ct. at 2700. Thus the historical “inquiry involves policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers.” Id.
There is no suggestion in this case that federal legislation is the source of either the immunity Mr. Clinton seeks or an abrogation of a previously declared presidential immunity. Cf. id. at 748 n. 27, 102 S.Ct. at 2700 n. 27 (noting that the causes of action in the case were “implied” in the Constitution and federal law, and therefore declining to “address directly the immunity question as it would arise if Congress expressly had created a damages action against the President” for his official acts). Nor is presidential immunity of any kind explicit in the text of the Constitution. Instead, whatever immunity the President enjoys flows by implication from the separation of powers doctrine, which itself is not mentioned in the Constitution, but is reflected in the division of powers among the three branches. See U.S. Const. arts. I, II, III. The Supreme Court in Fitzgerald, after an exhaustive examination of the history and the constitutional significance of the presidency, held that absolute immunity from civil liability for official acts is “a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history.” 457 U.S. at 749, 102 S.Ct. at 2701. There is a “special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers.” Id. at 743, 102 S.Ct. at 2698.
The parties agree, and so do we, that the fundamental authority on the subject of presidential immunity is the plurality opinion in Fitzgerald. As noted above, the issue before the Court in that case was whether the President is entitled to absolute immunity (rather than qualified immunity or no immunity at all) from personal civil liability for his official acts. By only a five-to-four majority, the Court held that, “[i]n view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Id. at 756, 102 S.Ct. at 2704. By definition, unofficial acts are not within the perimeter of the President's official responsibility at all, even the outer perimeter. 5 The Court's struggle in Fitzgerald to establish presidential immunity for acts within the outer perimeter of official responsibility belies the notion, here advanced by Mr. Clinton, that beyond this outer perimeter there is still more immunity waiting to be discovered. We thus are unable to read Fitzgerald as support for the proposition that the separation of powers doctrine provides immunity for the individual who serves as President from lawsuits seeking to hold him accountable for his unofficial actions. See id. at 759, 102 S.Ct. at 2706 (Burger, C.J., concurring) (“a President, like Members of Congress, judges, prosecutors, or congressional aides-all having absolute immunity-[is] not immune for acts outside official duties”). 6 Moreover, having considered the arguments put forward in the present case, we cannot discern any reason grounded in the Constitution for extending presidential immunity beyond the outer perimeter delineated in Fitzgerald. Accordingly, we hold that a sitting President is not immune from suit for his unofficial acts. In this case it is undisputed that most of the acts alleged by Mrs. Jones clearly fall outside the zone of official presidential responsibility, given that they occurred while Mr. Clinton was still governor of Arkansas. 7
Stressing that the immunity claimed here is only temporary (until the end of Mr. Clinton's presidency), Mr. Clinton and his amici would have us consider the nature of Mrs. Jones's complaint, as well as the timing of the filing of her suit (apparently just within the statute of limitations), and conclude that her suit is neither important nor urgent, and certainly not consequential enough to trump Mr. Clinton's claim to temporal immunity from suit. But that is not the test. Mrs. Jones is constitutionally entitled to access to the courts and to the equal protection of the laws. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803). Mrs. Jones retains that right in her suit against Mr. Clinton, regardless of what her claims may be or when her suit was filed (if otherwise timely filed), provided that she is not challenging actions that fall within the ambit of official presidential responsibility. We further reject the suggestion that Mrs. Jones's motives in filing suit, alleged to be political, should be examined, and that her suit should be dismissed if we are persuaded that her objective in bringing the suit is less than pure. Such an approach would convert a presidential immunity analysis into the taking and weighing of accusations and recriminations, an exercise unnecessary and inappropriate to the proper determination of a claim of immunity based on the Constitution.
Mr. Clinton argues that, if he is presently amenable to suit for his private acts, the proceedings against him inevitably will intrude upon the office of President, in contravention of Fitzgerald 's teachings, noting the Court's concern that the “diversion of [the President's] energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” 457 U.S. at 751, 102 S.Ct. at 2702. Thus, Mr. Clinton would have us ignore the line that Fitzgerald draws between official and unofficial acts and instead “balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch,” the analysis undertaken by the Court in reaching its decision on the question of presidential immunity for official acts. Id. at 754, 102 S.Ct. at 2703. But the Court in Fitzgerald was troubled by the potential impact of private civil suits arising out of the President's performance of his official duties on the future performance of those duties, not by whether the President qua individual citizen would have the time to be a defendant in a lawsuit. As the Court explained, “[A] President must concern himself with matters likely to ‘arouse the most intense feelings,’ ” and “it is in precisely such cases that there exists the greatest public interest in providing an official ‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” Id. at 752, 102 S.Ct. at 2702 (citations to quoted cases omitted). It is clear from a careful reading of Fitzgerald that the justification for the absolute immunity conferred in that case was concern that the President's awareness of his essentially infinite potential personal liability for virtually every official action he takes would have an adverse influence on the presidential decision-making process. The rationale of the Fitzgerald majority is that, without protection from civil liability for his official acts, the President would make (or refrain from making) official decisions, not in the best interests of the nation, but in an effort to avoid lawsuits and personal liability. This rationale is inapposite where only personal, private conduct by a President is at issue.
Mrs. Jones's claims, except for her defamation claim, 8 concern actions by Mr. Clinton that, beyond cavil, are unrelated to his duties as President. This lawsuit thus does not implicate presidential decision-making. If this suit goes forward, the President still will be able to carry out his duties without any concern that he might be sued for damages by a constituent aggrieved by some official presidential act. Though amenable to suit for his private acts, the President retains the absolute immunity found in Fitzgerald for official acts, and presidential decision-making will not be impaired. “In defining the scope of an official's absolute privilege, ․ the sphere of protected action must be related closely to the immunity's justifying purposes.” Id. at 755, 102 S.Ct. at 2704. We see no connection, much less a close one, between the unofficial actions Mr. Clinton wishes to shield from judicial process and the justifying purposes of presidential immunity as set forth by the Court in Fitzgerald.
Mr. Clinton argues that denying his claim to immunity will give the judiciary carte blanche to intrude unconstitutionally upon the Executive Branch and in fact will disrupt the performance of his presidential duties and responsibilities. As the argument goes, because a federal court will control the litigation, the Third Branch necessarily will interfere with the Executive Branch through the court's scheduling orders and its powers to issue contempt citations and sanctions. But Mr. Clinton's sweeping claim that this suit will allow the judiciary to interfere with the constitutionally assigned duties of the Executive Branch, and thus will violate the constitutional separation of powers doctrine if immunity is not granted, without detailing any specific responsibilities or explaining how or the degree to which they are affected by the suit (and, unlike the dissent, post at 1369, 1370 we think it is Mr. Clinton's burden to do so), is insufficient ground for granting presidential immunity, even temporarily. See Butz, 438 U.S. at 506, 98 S.Ct. at 2910 (“[F]ederal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.”) cf. United States v. Nixon, 418 U.S. 683, 713, 94 S.Ct. 3090, 3110, 41 L.Ed.2d 1039 (1974) (holding no presidential privilege attaches to presidential communications subpoenaed in criminal case when asserted privilege “is based only on the generalized interest in confidentiality”). We reject Mr. Clinton's argument, and instead focus our attention on the true separation of powers issues, which we already have discussed, upon which the question of presidential immunity hinges.
“[T]he Constitution by no means contemplates total separation of each of [the] three essential branches of Government.” Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976) (per curiam). Under the checks and balances provided for in the Constitution, all branches have the capacity to intrude in some way upon the province of the other branches. But under the Constitution, and because of those same checks and balances, no one branch may intrude upon another to such an extent that the threatened branch is rendered incapable of performing its constitutionally assigned duties. See id. at 122, 96 S.Ct. at 683-84 (“The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.”). What is needed, we believe, to avoid a separation of powers problem is not immunity from suit for unofficial actions, an immunity that would accord the President a degree of protection from suit for his private wrongs enjoyed by no other public official (much less ordinary citizens), but judicial case management sensitive to the burdens of the presidency and the demands of the President's schedule. The trial court has broad discretion to control the scheduling of events in matters on its docket. 9 We have every confidence that the District Court will exercise its discretion in such a way that this lawsuit may move forward with the reasonable dispatch that is desirable in all cases, without creating scheduling conflicts that would thwart the President's performance of his official duties.
The unfettered filing of numerous vexatious or frivolous civil lawsuits against sitting Presidents for their unofficial acts that Mr. Clinton and the dissenting opinion in this case envision if Mr. Clinton is not granted temporal immunity from Mrs. Jones's lawsuit is not only speculative, but historically unsupported. To date no court ever has held that an incumbent President has any immunity from suit for his unofficial actions. Although our Presidents never have been recognized as having any immunity from lawsuits seeking remedies for civil liabilities allegedly incurred by them in their personal dealings, it would appear that few such lawsuits have been filed. 10
While the President himself and his official conduct inevitably have the high visibility that concerned the Court in Fitzgerald, 457 U.S. at 753, 102 S.Ct. at 2703 (noting “the visibility of [the President's] office and the effect of his actions on countless people” as setting him up as “an easily identifiable target for suits for civil damages”), his unofficial, private conduct is on a different footing. Although such conduct may attract widespread attention when someone elects to make it public, the unofficial acts of the person who serves as President, unlike the President's official acts, are not likely to affect “countless people.” Rather, unofficial conduct will affect only those who traffic with the President in his personal capacity. Thus the universe of potential plaintiffs who might seek to hold the President accountable for his alleged private wrongs via a civil lawsuit is considerably smaller than the universe of potential plaintiffs who might seek to hold the President accountable for his official conduct in the latter case, the plaintiff could be virtually anyone who feels aggrieved by presidential action. If, contrary to history and all reasonable expectations, a President ever becomes so burdened by private-wrong lawsuits that his attention to them would hinder him in carrying out the duties of his office, then clearly the courts would be duty-bound to exercise their discretion to control scheduling and the like so as to protect the President's ability to fulfill his constitutional responsibilities. Frivolous claims, a category with which the courts are quite familiar, generally can be handled expeditiously and ordinarily can be terminated with little or no involvement by the person sued.
Finally, we reject the notion that presidential immunity in civil cases seeking a remedy for unofficial acts can be conferred on an ad hoc basis. There is no constitutional basis for the proposition that a court, in its discretion, could refuse to grant immunity to a President in, for example, suits for arrearages in child support or the case of the “more urgent need” of a plaintiff seeking injunctive relief, Appellant's Reply Brief at 21 n. 14, or of a plaintiff who shows exigent circumstances, while granting immunity from suits for declaratory relief or money damages where the plaintiff demonstrates no exigency. A sitting President is either entitled to immunity from suit for his unofficial acts, or he is not. As we have noted, presidential immunity is not a prudential doctrine fashioned by the courts. Mr. Clinton is entitled to immunity, if at all, only because the Constitution ordains it. Presidential immunity thus cannot be granted or denied by the courts as an exercise of discretion. The discretion of the courts in suits such as this one comes into play, not in deciding on a case-by-case basis whether a civil complaint alleging private wrongs is sufficiently compelling so as to be permitted to proceed with an incumbent President as defendant, but in controlling the scheduling of the case as necessary to avoid interference with specific, particularized, clearly articulated presidential duties. If the trial preliminaries or the trial itself become barriers to the effective performance of his official duties, Mr. Clinton's remedy is to pursue motions for rescheduling, additional time, or continuances. Again, we have every confidence that the District Court will discharge its responsibility to protect the President's role as our government's chief executive officer, without impeding Mrs. Jones's right to have her claims heard without undue delay. If either party believes the court is failing to discharge that responsibility, the proper course is to petition this Court for a writ of mandamus or prohibition.
To sum up, we hold that the Constitution does not confer upon an incumbent President any immunity from civil actions that arise from his unofficial acts. Accordingly, we affirm the District Court's decision denying Mr. Clinton's motion to dismiss Mrs. Jones's suit and the decision to allow discovery in this case to proceed. For the same reason, we reverse the District Court's order granting Mr. Clinton's motion to stay the trial of this matter for the duration of his presidency. Mrs. Jones's appeal of the District Court's post-judgment order staying discovery during the pendency of this appeal is dismissed as moot, as is Mr. Clinton's challenge to our jurisdiction to hear that appeal. The case is remanded to the District Court, with instructions to lift the stays that the court has entered and to allow Mrs. Jones's suit against Mr. Clinton and Trooper Ferguson to proceed in a manner consistent with this opinion and the Federal Rules of Civil Procedure.
I concur in the conclusions reached by Judge Bowman. I write separately to express my views on three matters which are, in my mind, insufficiently discussed by either the opinion of the court or the dissent.
Mr. Clinton and his amicus vigorously present their position on the potential impact of this civil litigation on the office and the duties of the presidency. And, without question, they raise matters of substantial concern given the constitutional obligations of the office. What is missing from their arguments is a coordinated and balanced analysis of the impact a stay of the litigation, including an embargo on all discovery, will have on Ms. Jones and her claims. This should also be of substantial concern because it involves fundamental constitutional rights governing access to and use of the judicial process under the First and Fourteenth Amendments and the right to a timely jury trial under the Seventh Amendment, to identify only a few specific omissions.
It is incorrect, in my view, for Mr. Clinton and his amicus to assert that the delay is of no consequence to Ms. Jones. Aside from the adage that justice delayed is justice denied, Ms. Jones faces real dangers of loss of evidence through the unforeseeable calamities inevitable with the passage of time. To argue that this problem may be dealt with by episodic exceptions when the risk of loss is apparent is to miss the point. Only rarely does life proceed in such a foreseeable fashion.
The dissent states, “[w]here there is no urgency to pursue a suit for civil damages, the proper course is to avoid opportunities for breaching separation of powers altogether by holding the litigation in abeyance until a President leaves office.” Infra at 1369. The dissent urges total abeyance of both discovery and trial. I perceive this, perhaps incorrectly, to be an implicit finding that there is, indeed, no real urgency to Ms. Jones's suit for civil damages and, thus, the constitutionally based separation of powers doctrine demands that this litigation, in all of its manifestations, be abated until Mr. Clinton leaves office-this to protect the constitutional grant of executive authority given to a sitting President. In my view, this greatly oversimplifies the issues in this appeal and overstates the danger to the presidency. The potential for prejudice to Ms. Jones, as earlier noted, reaches, or at least approaches, constitutional magnitude. If a blanket stay is granted and discovery is precluded as suggested by Mr. Clinton and his amicus, Ms. Jones will have no way that I know of (and none has been advanced by those counseling this course of action), 1 to perpetuate the testimony of any party or witness should they die or become incompetent during the period the matter is held in abeyance. Should the death or incompetence of a key witness occur, proving the elements of Ms. Jones's alleged causes of action will become impossible. Thus, her “chose in action” would be obliterated, or at least substantially damaged if she is denied reasonable and timely access to the workings of the federal tribunal.
It is true that some of Ms. Jones's claims would survive to her guardian, heirs or assigns in the event of her incompetence or death, assuming a way is found to preserve crucial evidence. Her claim of defamation is in a different class. It almost certainly would be totally extinguished should either party die. This would also include her defamation claims asserted against Trooper Ferguson.
From the pleadings, the forum law applicable to her defamation claims is not easily discernible and I have not canvassed the law in every conceivable jurisdiction. It seems appropriate to note, however, that under Arkansas law, for example, the defamation claims would expire on the death of either party. See Ark.Code Ann. § 16-62-101(b) (Michie 1987 & Supp.1993) Parkerson v. Carrouth, 782 F.2d 1449, 1451-53 (8th Cir.1986). I think Arkansas expresses the rule of most jurisdictions. Accordingly, one can readily see the irreparable harm that a stay of this claim (assuming its viability as we must at this point) will bring to Ms. Jones. Thus, the total stay requested by Mr. Clinton and his amicus, and embraced by the dissent, will immediately produce a threat of irreparable injury.
Even though a sitting President is not immune from liability for his nonofficial conduct, it is fair to note that some of Ms. Jones's defamation claims, as presently alleged, may well fit within the “outer perimeter” of official responsibility as discussed in Nixon v. Fitzgerald, 457 U.S. 731, 756, 102 S.Ct. 2690, 2704, 73 L.Ed.2d 349 (1982). Thus, at the very least, absolute immunity defenses to these claims should be immediately taken up and decided by the district court.
The dissent appears to recognize the potential for irreparable harm to Ms. Jones and proposes that her interests-as balanced against the interests of Mr. Clinton-be analyzed and weighed by shifting the burden of establishing “irreparable injury” to Ms. Jones, along with the additional burden on Ms. Jones of showing “that the immediate adjudication of the suit will not significantly impair the President's ability to attend to the duties of his office.” Infra at 1369. The dissent cites no established authority or case precedent for this burden-shifting strategy, even by analogy to some reasonably comparable situation. I have discovered none. In this regard, there is no way, in my view, that a litigant could ever successfully shoulder the burden assigned by the dissent, especially if all discovery is prohibited. To determine, as a precondition to “immediate adjudication,” that at some future time the lawsuit will not significantly impair the duties of the President would be an impossible task. Thus, the dissent's proposed safety valve is valueless, except in its recognition of the potential for irreparable harm to Ms. Jones caused by the total stay.
Notwithstanding the separation of powers concerns outlined by the dissent, the burden, in my view, should be shouldered, as in any other civil litigation, by the party seeking to delay the usual course of discovery and trial. Otherwise, we will have established requirements of insurmountable proportions for any litigant who may have a viable and urgent civil claim against a sitting President or perhaps, against other important governmental figures with constitutionally established duties.
This approach to staying litigation is a well-established legal concept. Traditionally, an applicant for a stay has the burden of showing specific hardship or inequity if he or she is required to go forward. Landis v. North American Co., 299 U.S. 248, 254-56, 57 S.Ct. 163, 165-67, 81 L.Ed. 153 (1936). This may be a sub silentio recognition of the terms of the Seventh Amendment. However, great public interest may authorize a stay which is not immoderate or oppressive in its consequences. Id. at 256, 57 S.Ct. at 166-67. Thus, while there is a balancing to be done, the presumption is on Ms. Jones's, not Mr. Clinton's, side. When stays are granted, after the petitioner for the stay meets his “heav[ ]y” burden of showing “the justice and wisdom of a departure from the beaten track,” they must be narrowly tailored or they will amount to an abuse of discretion. Id. Of course, the justice and wisdom of such a departure will take into account, in this case, that one of the parties is the sitting President of the United States. See generally United States v. Poindexter, 732 F.Supp. 142, 146 (D.D.C.1990). Nonetheless, I agree with Judge Bowman that Mr. Clinton should carry this initial burden, not Ms. Jones.
In determining whether to stay the litigation, Ms. Jones must be given the benefit of the concept that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever [s]he receives an injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 161, 2 L.Ed. 60 (1803) (emphasis added). More recently, and explicitly, access to the courts has been held to be a “fundamental constitutional right” founded in the Due Process and Equal Protection clauses. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). This right is pivotal to our system of governance in that “civil rights actions [such as the 42 U.S.C. § 1983 action at issue here] are of ‘fundamental importance ․ in our constitutional scheme’ because they directly protect our most valued rights.” Id. at 827, 97 S.Ct. at 1498 (quoting Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748-49, 21 L.Ed.2d 718 (1969)).
Surely, if civil rights actions are of such importance that they may not be impeded or delayed by a person's incarceration, there must be at least an equal public interest in an ordinary citizen's timely vindication of his or her most fundamental right against alleged abuse of power by governmental officials. As noted, Ms. Jones has, in part, brought a 42 U.S.C. § 1983 action, not a mere run-of-the-mill tort claim. The violation of civil rights through the abuse of state government positions of power has been of such great public concern that Congress felt it necessary to enact section 1983 to protect the citizenry and to hold persons with positions of power accountable for its abuse. Thus, this is not a minor civil dispute to which one can assign no public interest beside that on the side of the presidency. The balance to be considered, therefore, is not completely one sided. There is a public interest, as well as an individual interest, on Ms. Jones's side of the scale. These interests are of such weight that, at least provisionally, Ms. Jones is entitled to proceed.
I now turn to the potential impact upon the duties of the presidency. The dissent eloquently and properly raises several unanswered questions, infra at 1368-69, concerning judicial branch interference with the functioning of the presidency should this suit be allowed to go forward. Again, I readily admit that these are matters of major concern. In my view, however, these concerns for interbranch interference are greatly overstated by Mr. Clinton and his amicus. Indeed, they are not appreciably greater than those faced in many other instances in which a sitting President interfaces as a party, witness, or target with the judicial and legislative branches of the government. Judge Bowman notes at least three earlier instances in which sitting Presidents have been involved in civil litigation outside of official presidential duties. Supra at 1361 & n. 10. Also in the past, under appropriate circumstances “several American Presidents and former Presidents have given testimony under oath in judicial or quasi-judicial settings.” 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 7.1 at 572 (2d ed. 1992). Former and sitting Presidents have previously submitted, either voluntarily or involuntarily, to questions under oath. Id. By doing so, they implicitly submitted to the common law rule, expressed by Lord Hardwicke, “that the public has a right to every man's evidence” 8 John H. Wigmore, Evidence § 2192, at 71 (John McNaughton ed. rev. 1961) (quoting 12 Cobbett's Parliamentary History 675, 693 (1942)).
Is there any reason why this right should suffer an exception when the desired knowledge is in the possession of a person occupying at the moment the office of chief executive of a state?
There is no reason at all. His temporary duties as an official cannot override his permanent and fundamental duty as a citizen and as a debtor to justice.
Id. at § 2370(c) (emphasis in original).
As a sitting President, Richard Nixon was a defendant in at least two civil actions. In one, Mr. Nixon was ordered by the Supreme Court to produce tapes subpoenaed by a special prosecutor. United States v. Nixon, 418 U.S. 683, 713, 94 S.Ct. 3090, 3110, 41 L.Ed.2d 1039 (1974). In the other, National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C.Cir.1974) the court held that a President is amenable to legal process, even in his official capacity, if absolutely necessary. Mr. Nixon did not appeal that determination.
Also, as noted by Rotunda and Nowak, President Jimmy Carter gave videotaped testimony during his presidency that was presented at the criminal conspiracy trial of two Georgia state officials. See 1 Rotunda & Nowak § 7.1 at 575. Later, then-sitting President Carter provided videotaped testimony for a grand jury investigating charges that Robert Vesco had enlisted White House aid to quash extradition proceedings against him. Id. Finally, still-sitting President Carter was interviewed under oath by Justice Department investigators probing “for criminal, civil, and administrative purposes” any offenses resulting from Billy Carter's relations with the Libyan Government. Id. Further, President Gerald Ford was compelled to testify by videotape deposition in the criminal trial of Lynette (Squeaky) Fromme, who was charged with attempting to assassinate the President. Id. at 581. There are numerous other instances in which a sitting President has both voluntarily or involuntarily appeared at judicial proceedings and before committees of Congress. Such instances have involved, at least, Presidents Thomas Jefferson, James Monroe, Abraham Lincoln and Ulysses S. Grant. See id. § 7.1.
I concede that most of these situations have arisen within the framework of governmental operations. I further concede that there is not a perfect fit between the interests at play in the cited interbranch proceedings and the civil litigation at issue here. My point is that each named President has obviously scheduled these encounters without creating a cataclysmic episode in which the constitutional duties of the office have been compromised.
Ms. Jones's complaint presents relatively uncomplicated civil litigation, the discovery for which can and should be carried out with a minimum of impact on the President's schedule. It is doubtful, for instance, that more than one, perhaps two, face-to-face pretrial encounters between the President and Ms. Jones's representatives need to occur. Indeed, there is not even a requirement that parties be present at the trial of civil litigation and with some frequency they are not. At the bottom line, the availability of written interrogatories, written requests for admissions and written stipulations of undisputed facts, as allowed by the Federal Rules of Civil Procedure, would indicate that the actual impact of this litigation on the duties of the presidency, if that is Mr. Clinton's real concern, is being vastly magnified, especially assuming the trial judge's careful supervision of the litigation with maximum consideration of the President's constitutional duties.
My final concern involves Trooper Danny Ferguson. Even assuming, for sake of argument, the validity of every constitutional claim or defense advanced by Mr. Clinton, I can find no basis for staying discovery or trial of the claims against Trooper Ferguson. Whether private citizen or President, it is unlikely that Mr. Clinton would choose to be present at the deposition of Trooper Ferguson or any sundry witness certainly he would not be required to attend and no prejudice is likely to result from his absence. Neither would he need to be directly concerned with other discovery directed to Trooper Ferguson although it might, admittedly, affect his interests. Even so, I find no separation of powers or other constitutional basis for a stay for this portion of the litigation, especially the discovery process. 2
I in no way seek to downplay the concerns outlined by the dissent. At the same time, I feel that Judge Bowman's opinion reasonably charts a fair course through the competing constitutional waters and does so without serious injury to the rights of any party. As I have attempted to stress, nothing prohibits the trial judge from halting or delaying or rescheduling any proposed action by any party at any time should she find that the duties of the presidency are even slightly imperiled. With this understanding, I concur.
I respectfully dissent from the majority opinion. Instead, I would affirm the judgment of the district court concluding that the civil action should not be dismissed, but stayed during the President's term in office. Further, I would reverse the district court's conclusion allowing discovery to proceed.
In my opinion, the language, logic and intent of Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), although set in the context of official acts, applies with equal force to the present factual scenario and directs a conclusion here that, unless exigent circumstances can be shown, private actions for damages against a sitting President of the United States, even though based on unofficial acts, must be stayed until the completion of the President's term.
The Fitzgerald decision was derived from both the functional necessities of the President's execution of Article II duties, and the principle that no branch should be subject to crippling incursions by another branch. The Court's reasoning is highly instructive in the present case because it demonstrates the importance of insulating the President from the disruptive effects of private suits against him, whether based on official or unofficial acts. The Fitzgerald Court placed primary reliance on the prospect that the President's discharge of his constitutional powers and duties would be impaired if he were subject to suits for damages. The Court stated, “[b]ecause of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” Id. at 751, 102 S.Ct. at 2702.
This “diversion of energies” argument refers not only to the concern with whether the President will execute his official duties in a fearless and impartial manner, but also recognizes that the “President occupies a unique position in the constitutional scheme,” one that “distinguishes him from other executive officials.” Id. at 749, 750, 102 S.Ct. at 2701. Article II, § 1 of the Constitution uniquely vests the entire executive power in the President. No other branch of government is entrusted to a single person. It is this singularity of the President's constitutional position that calls for protection from civil litigation.
The unofficial nature of the alleged events would not make defending a private suit for civil damages any less of a burden on the President's time and attention and therefore on his constitutional responsibilities, or any less of a “risk[ ] to the effective functioning of government.” Id. at 751, 102 S.Ct. at 2702. When the President is called upon to defend himself during his term of office, even in actions wholly unrelated to his official responsibilities, the dangers of intrusion on the authority and functions of the Executive Branch are both real and obvious. The burdens and demands of civil litigation can be expected to impinge on the President's discharge of his constitutional office by forcing him to divert his energy and attention from the rigorous demands of his office to the task of protecting himself against personal liability. That result would disserve the substantial public interest in the President's unhindered execution of his duties and would impair the integrity of the role assigned to the President by Article II of the Constitution.
Further, the Fitzgerald majority was concerned with the possibility that the “sheer prominence of the President's office” makes a President “an easily identifiable target for suits for civil damages.” Id. at 752-53, 102 S.Ct. at 2703. In his concurrence, Chief Justice Burger noted the possibility that private suits for damages against a President could be used for purposes of harassment and extortion. Id. at 762, 763, 102 S.Ct. at 2707, 2708 (Burger, C.J., concurring). While stated in the context of official acts, Chief Justice Burger's concurrence applies with equal force to the present case:
The need to defend damages suits would have the serious effect of diverting the attention of a President from his executive duties since defending a lawsuit today-even a lawsuit ultimately found to be frivolous-often requires significant expenditures of time and money, as many former public officials have learned to their sorrow․ When litigation processes are not tightly controlled ․ they can be and are used as mechanisms of extortion. Ultimate vindication on the merits does not repair the damage.
Id. at 763, 102 S.Ct. at 2708 (Burger, C.J., concurring).
The same concerns are implicated in the present action as well, where such suits could be pursued merely for the purpose of gaining partisan political disruption, public notoriety, unwarranted financial gain, or potential extortion. Indeed, any number of potential private claims could be contrived to entangle a sitting President in embarrassing or protracted litigation, alleging unwitnessed one-on-one encounters that are extremely difficult to dispose of by way of a pretrial motion.
The Fitzgerald Court also recognized that presidential immunity is “rooted in the separation of powers under the Constitution.” Id. at 753, 102 S.Ct. at 2703 (quoting United States v. Nixon, 418 U.S. 683, 708, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974)). The Court noted that the Framers of the Constitution assumed that “the President personally, was not the subject to any process whatever․ For [that] would ․ put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.” Id. 457 U.S. at 750 n. 31, 102 S.Ct. at 2701 (quoting Journal of William Maclay 167 (E. Maclay ed. 1890) (alteration in original)). Quoting Thomas Jefferson, the Supreme Court further underscored its concern that exercising jurisdiction over a President would create the opportunity for unconstitutional judicial intrusion upon Executive authority:
[W]ould the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?
Id. (quoting 10 The Works of Thomas Jefferson 404 (P. Ford ed. 1905)).
In my view, the separation of powers doctrine requires that private civil actions against a sitting President for unofficial acts must be stayed during the President's term in office. Civil lawsuits against a President create opportunities for the judiciary to intrude upon the Executive's authority, set the stage for potential constitutional confrontations between courts and a President, and permit the civil justice system to be used for partisan political purposes. It cannot be denied that the potential for such conflicts is inherent in subjecting any President personally to a court's jurisdiction.
The majority concludes the remedy for interference with the performance of the President's official duties by the demands of discovery and trial preparations and proceedings is the filing of motions with the court for rescheduling, additional time or continuances. Ante at 1362. If this route proves to be unsuccessful, the majority suggests the President should be required to petition this Court for a writ of mandamus or prohibition, id., and arguably then to appeal any adverse decision to the Supreme Court. This suggestion, however, clearly epitomizes the separation of powers conflict inherent in a system that subjects a sitting President personally to the court's jurisdiction for the purpose of private civil litigation.
The majority's decision leaves as many questions unanswered as it answers: Must a President seek judicial approval each time a scheduled deposition or trial date interferes with the performance of his constitutional duties? Is it appropriate for a court to decide, upon the President's motion, whether the nation's interest in the unfettered performance of a presidential duty is sufficiently weighty to delay trial proceedings? Once a conflict arises between the court and the President as to the gravity of an intrusion on presidential duties, does a court have the authority to ignore the President's request to delay proceedings? Finally, can a court dictate a President's activities as they relate to national and international interests of the United States without creating a separation of powers conflict? While the majority would encourage other courts to exercise “judicial case management sensitive to the burdens of the presidency,” ante at 1361, only a stay of civil litigation during a President's term in office will ensure the performance of Executive duties unencumbered by the judiciary and thereby avoid separation of powers conflicts.
While noting that the separation of powers doctrine “does not bar every exercise of jurisdiction over the President of the United States,” Fitzgerald, 457 U.S. at 753-54, 102 S.Ct. at 2703, in view of the significant encroachment upon presidential duties and independence that would necessarily accompany litigation, the Fitzgerald Court admonished that, before asserting such jurisdiction, a court “must balance the constitutional weight of the interest to be served [by the litigation] against the dangers of intrusion on the authority and functions of the Executive Branch.” Id. at 754, 102 S.Ct. at 2703 (emphasis added) (citing Nixon v. GSA, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977) United States v. Nixon, 418 U.S. at 703-13, 94 S.Ct. at 3105-10).
Where there is no urgency to pursue a suit for civil damages, the proper course is to avoid opportunities for breaching separation of powers altogether by holding the litigation in abeyance until a President leaves office. The cause of action should be stayed unless the plaintiff can show that he or she will suffer irreparable injury without immediate relief and that the immediate adjudication of the suit will not significantly impair the President's ability to attend to the duties of his office.
It is important to keep in mind that the issue here is not whether the President may be required to answer claims based on unofficial conduct, but when. This conclusion merely delays, rather than defeats, the vindication of the plaintiff's private legal interests, and thus is far less burdensome for a plaintiff than the absolute immunity recognized in Fitzgerald. A stay for the duration of the President's service in office would not prevent Jones from ultimately obtaining an adjudication of her claims. Rather, staying the litigation will protect the important public and constitutional interests in the President's unimpaired performance of his duties, while preserving a plaintiff's ability to obtain resolution of his or her claims on the merits. Postponing adjudication of private damage actions will rarely defeat a plaintiff's ability to ultimately obtain meaningful relief. “[W]e do well to bear in mind that the focus must not be simply on the matter of judging individual conduct in a fact-bound setting rather, in those familiar terms of John Marshall, it is a Constitution we are expounding. Constitutional adjudication often bears unpalatable fruit. But the needs of a system of government sometimes must outweigh the right of individuals to collect damages.” Id. at 758-59, 102 S.Ct. at 2706 (Burger, C.J., concurring).
The well-known travail of litigation and its effect on the ability of the President to perform his duties, as well as the subjection of the President to the ongoing jurisdiction of the courts and the attendant impact on the separation of powers, dictate the postponement of non-exigent, private civil damages litigation until the President leaves office.
In my opinion, the stay should include pretrial discovery, as well as the trial proceedings, because discovery is likely to pose even more intrusive and burdensome demands on the President's time and attention than the eventual trial itself. Similarly, I would grant a stay of proceedings against a co-defendant of a sitting President where, given all the circumstances, the claims against the co-defendant cannot proceed without materially diminishing the effectiveness of a stay of proceedings against the President. I agree with the district court's conclusion here that a stay of the claims against Trooper Ferguson is essential if the President is to be fully protected.
Out of respect for the separation of powers and the unique constitutional position of the President, I conclude the President ordinarily should not be required to defend himself against civil actions until after the completion of his service in office. Therefore I would hold that to rebut the presumption that private suits against a sitting President should not go forward during the President's service in office, the plaintiff should have to demonstrate convincingly both that delay will seriously prejudice the plaintiff's interests and that immediate adjudication of the suit will not significantly impair the President's ability to attend to the duties of his office. Absent such a showing, the litigation should be deferred.
1. In addition to staying the trial on Mrs. Jones's claims against Mr. Clinton, the District Court also stayed trial against Mr. Clinton's co-defendant in the suit, Arkansas State Trooper Danny Ferguson.
2. In addition to the briefs of the parties, amicus briefs have been filed in support of Mr. Clinton by the United States and by a group of law professors including Professors Amar, Bloch, Bruff, Estrich, Fallon, Jr., Farber, Frickey, Gewirtz, Gunther, Jeffries, Jr., Levinson, Marshall, Resnik, Sherry, Shiffrin, Sullivan, and Tribe and in support of Mrs. Jones by The American Civil Liberties Union Foundation and by a group of law professors including Professors Burbank, Cohen, Kramer, Merritt, Miller, Nagel, Parker, Powe, Jr., Presser, Rotunda, and Van Alstyne.
3. The District Court also justified the stay on the basis of its authority under Rule 40 of the Federal Rules of Civil Procedure and “the equity powers of the Court.” Jones v. Clinton, 869 F.Supp. 690, 699 (E.D.Ark.1994).
4. Mr. Clinton argues that we do not have jurisdiction to hear Mrs. Jones's cross-appeal from the orders staying the trial, as they are non-final, interlocutory orders. We conclude, however, that Mrs. Jones's cross-appeal is “inextricably intertwined” with Mr. Clinton's appeal, which is before us under the immunity exception to the general rule that only final judgments are appealable. See Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2814-15, 86 L.Ed.2d 411 (1985). Thus the orders staying trial are presently appealable under our “pendent appellate jurisdiction.” See Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir.1995) (analyzing Swint v. Chambers County Commission, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), and concluding that pendent appellate jurisdiction remains a viable concept in the Eighth Circuit). All issues raised in the appeal and the cross-appeal (with the exception of those portions of the orders concerning the defamation claim against Mr. Clinton, see infra note 7)-the challenges to the non-dismissal of the suit, to the stays of trial, and to the allowance of discovery-are resolved by answering one question: is a sitting President entitled to immunity, for the duration of his presidency, from civil suit for his unofficial acts? It is difficult to imagine issues more “intertwined” than these, where answering one question of law resolves them all.
5. We note that the dissenting opinion in the present case does not mention Fitzgerald's “outer perimeter,” much less explain how unofficial acts could come within the protected zone.
6. The dissenting opinion, while liberally citing and quoting Chief Justice Burger's concurrence, post at 1367-68, 1369, does not mention that the Chief Justice expressly stated that the President is “not immune for acts outside official duties.”
7. Mrs. Jones's state law defamation claim concerns actions alleged to have been taken by Mr. Clinton's presidential press secretary while Mr. Clinton was President. The question whether these actions fall inside the “ ‘outer perimeter’ of [the President's] official responsibility,” Nixon v. Fitzgerald, 457 U.S. 731, 756, 102 S.Ct. 2690, 2704, 73 L.Ed.2d 349 (1982), so as to come within the scope of the President's absolute immunity for official acts, is not free from doubt. This particular issue has not been addressed by the District Court, and the record as to the circumstances of the press secretary's statements is not fully developed. We therefore leave this issue for initial resolution by the District Court after remand and upon a more complete record.
9. Notwithstanding the District Court's broad discretion in matters concerning its own docket, the alternative rationale for the stays the court granted-its power under Federal Rule of Civil Procedure 40 and “the equity powers of the Court,” Jones v. Clinton, 869 F.Supp. at 699-attempts to justify orders that we consider an abuse of discretion. Such an order, delaying the trial until Mr. Clinton is no longer President, is the functional equivalent of a grant of temporary immunity to which, as we hold today, Mr. Clinton is not constitutionally entitled.
10. The parties have identified only three prior instances in which sitting Presidents have been involved in litigation concerning their acts outside official presidential duties. See also Jones v. Clinton, 869 F.Supp. at 697. Those suits were against Theodore Roosevelt, Harry S Truman, and John F. Kennedy. In each case, the action was filed before the defendant began serving as President, and the suits against Presidents Roosevelt and Truman were already on appeal before those men assumed the office of President. People ex rel. Hurley v. Roosevelt, 179 N.Y. 544, 71 N.E. 1137 (1904) (per curiam mem.) DeVault v. Truman, 354 Mo. 1193, 194 S.W.2d 29 (1946). It does not appear that either Mr. Roosevelt or Mr. Truman claimed any immunity from suit. In the action against Mr. Kennedy, he asserted, post-election, that he was temporarily protected from suit under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. §§ 501-93 (1988 & Supp. V 1993), given his status as Commander-in-Chief. The court denied Mr. Kennedy's motion for a stay, apparently without a written opinion, and the case eventually settled. Bailey v. Kennedy, No. 757,200 (Cal.Super.Ct.1962) Hills v. Kennedy, No. 757,201 (Cal.Super.Ct.1962).
1. Only the amicus brief filed by the Solicitor General fleetingly mentions this problem, but it offers no solutions.
2. Any problems that arise from attempts by Trooper Ferguson to depose or otherwise conduct discovery from Mr. Clinton, if resisted, are, in my view, separate from the issues raised in this appeal.
Albert E. Jenner, Jr.
Albert Ernest Jenner, Jr. (June 20, 1907–September 18, 1988) was an American lawyer and one of the name partners at the law firm of Jenner & Block. He served as assistant counsel to the Warren Commission as a member of the U.S. National Commission on the Causes and Prevention of Violence and as special counsel to the House Judiciary Committee during the Watergate Scandal.
Jenner was born in Chicago—his father was a police officer with the Chicago Police Department. Jenner attended the University of Illinois at Urbana𠄼hampaign (B.A. 1929). To help pay his way through college, Jenner earned money by competing as a professional boxer. He was also the circulation editor at the Daily Illini. It was while working on the Daily Illini that Jenner met his future wife, Nadine Newbill.
After college, he studied at the University of Illinois College of Law, receiving his LL.B. in 1930. Following law school, he served as the reporter for the Illinois Civil Practice Act. He joined the firm of Poppenheusen, Johnston, Thompson and Cole (the precursor of Jenner & Block) in 1933 and became a partner of the firm in 1939. Jenner thrived at the firm and, in 1947, at age 40, he became the president of the Illinois State Bar Association. He would later go on to serve as the eighth president of the American College of Trial Lawyers.
Years as prominent attorney
In his practice at Poppenheusen, Johnston, Thompson and Cole, Jenner would develop relationships with several prominent clients, most notably General Dynamics. Already by the 1940s, Jenner had become the top earner at the firm. In 1955, he was rewarded by becoming a name partner at the firm. (The firm eventually became known as "Jenner & Block" in 1964.) As a lawyer, Jenner was dedicated to pro bono work and, in the 1960s, he supported partner Prentice Marshall's efforts to found Jenner & Block's pro bono program, one of the first in the country.
In the early 1950s, President Harry S. Truman appointed Jenner to the Civil Service Commission Loyalty Review Board, which had been established by Executive Order 9835 in 1947.
In 1960, the Supreme Court of the United States appointed Jenner to the Advisory Committee for the Federal Rules of Civil Procedure, a post he would hold until 1970.
Following the assassination of John F. Kennedy, Jenner was named as assistant counsel to the Warren Commission, in which capacity he was responsible for investigating the life of Lee Harvey Oswald, and, determining if there was any evidence of others involved in a conspiracy for the Commission.
In 1964, the U.S. Supreme Court named Jenner chairman of the Advisory Committee for the Federal Rules of Evidence—he would continue in this post until 1975.
In 1968, Lyndon B. Johnson appointed Jenner to the U.S. National Commission on the Causes and Prevention of Violence, which Johnson established in the wake of the assassinations of Martin Luther King, Jr. and Robert F. Kennedy to study the causes of violence in the U.S.
1968 also saw Jenner argue his first major case at the U.S. Supreme Court, Witherspoon v. Illinois. http://en.wikipedia.org/wiki/Witherspoon_v._Illinois
In the following years, he would argue Mills v. Electric Auto-Lite (1970) Reliance Electric Co. v. Emerson Electric Co. (1972) Gonzales v. Automatic Employees Credit Union (1974) and Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich (1976). Jenner himself was mentioned as a preferred candidate for the Supreme Court by Johnson's Secretary of Defense, Clark Clifford, over Johnson's choice, Homer Thornberry. With the impending retirement of Chief Justice Earl Warren, Johnson hoped to elevate Associate Justice Abe Fortas to that post and Thornberry to Fortas' seat. Clifford thought Jenner would be a more acceptable candidate for Senate Republicans than Thornberry and help make them more amenable to Fortas as Chief Justice. Fortas' nomination was derailed by various scandals and withdrawn, which also ended Thornberry's nomination.
Jenner participated in the investigation into the 1969 bribery scandal at the Supreme Court of Illinois involving Chief Justice Roy Solfisburg and former Chief Justice Ray Klingbiel.
In 1973, the Republicans on the House Judiciary Committee named Jenner as the Committee's Chief Minority Counsel. During this time, Jenner fought (successfully) against Senator Ted Kennedy's attempt to appoint a Boston Municipal Court judge whom Jenner thought was unqualified, as a federal judge. However, the most notable thing that happened while Jenner was at the House Judiciary Committee was the Committee's investigations into the Watergate allegations against Richard Nixon. Jenner was ultimately forced to resign as special counsel when he recommended the impeachment of Nixon, which is somewhat ironic since the Republicans on the Committee ultimately voted in favor of impeachment.
A longtime opponent of the House Un-American Activities Committee, Jenner played a role in its 1975 abolition after he filed a First Amendment challenge to HUAC in response to its investigation of Dr. Jeremiah Stamler, a prominent Chicago heart researcher.
In the course of his career, Jenner also served as: a director of General Dynamics as a permanent member of the editorial board of the Uniform Commercial Code and as the chairman of the Committee on the Federal Judiciary of the American Bar Association. He also served on the Board of Governors of the NAACP Legal Defense Fund as the president of the American Judicature Society and as president of the National Conference of Commissioners on Uniform State Laws.
The University of Illinois College of Law bestowed an honorary doctorate on Jenner in 1981. In 1982, Jenner endowed a professorship at the University of Illinois College of Law. The University of Illinois College of Law's library is also named in his honor.
Jenner died in 1988. His funeral was held at Holy Name Cathedral, Chicago. Illinois Governor Jim Thompson delivered a eulogy at the funeral. In that eulogy, Gov. Thompson said
“ When the soul of our nation was torn by the assassination of a president, our nation reached out to Bert Jenner. And when the fabric of our Constitution was threatened by the actions of a president, our nation reached out to Bert Jenner. When the wounds were deep and grievous for all Americans, when some impoverished soul was threatened, when some unpopular cause would have been extinguished but for the bravery and perseverance of that man, they all reached out for Bert Jenner. ”
“ THE ORDEAL OF LESTER CROWN - The New York Times New York Times - Dec 7, 1986 "Meanwhile, seven officers and employees of Material Service were padding their expense accounts -at the direction of Crown, according to the Government report - and reimbursing their boss. The project was cut short when Material Service was subpoenaed by a Federal grand jury investigating corruption in the industry. The family turned to Albert E. Jenner Jr., a lawyer and longtime friend who is on the board of General Dynamics. Whenever the kids got into trouble, Jenner says, they never bothered the old man. They talked to me, and I got them out of trouble. In return for his cooperation with the grand jury, Lester Crown was granted immunity from prosecution." ” Jenner's most prominent client was Henry Crown, and U.S. Supreme Court Justice and former U.S. Attorney General, Tom C. Clark and Dean Acheson were the two men Earl Warren named as supporting the selection of Jenner as a Senior Assistant Investigative Counsel of the Warren Commission investigation. Jenner was appointed and performed the "Area III" assignment, "Lee Harvey Oswald's Background."
The appointment of Jenner to investigate whether Oswald, and by extension, also Oswald's murderer, Jack Ruby, acted alone or conspired with others remains controversial.
It is commonly known that Albert E. Jenner, Jr., in the late 1960s, was the criminal defense attorney for Allen Dorfman, a close associate of longtime IBT President Jimmy Hoffa. Dorfman was convicted on several felony counts, and was violently murdered in 1983.
However, in 1953 Congressional Committee Hearings on Labor Racketeering, Jenner also represented Chicago Electrical Workers Local 1031 business manager, M. Frank Darling, while he was under investigation for paying the inexperienced, newly opened insurance brokerage owned by Allen Dorfman, his father Paul Dorfman, and his mother Rose, millions of dollars of funds paid to Local 1031 by employers per union contract agreements, in exchange for health insurance coverage of Local 1031's union members. Stanford Clinton was counsel for the Dorfmans. Jenner explained to the Committee and its counsel that Mr. Darling did not understand the concept of a retention rate related to excess health insurance premiums paid to the Dorfmans. During that same hearing, Jimmy Hoffa challenged Jenner's client, Darling's claim of inability to understand retention percentage. Darling had permitted the Dorfmans a 100 percent retention of excess premiums paid, while the Committee was critical of Jimmy Hoffa allowing the Dorfmans to retain just 17-1/2 percent of excess Teamsters Union paid premiums.
Minutes of a 1982 State of New Jersey Casino Control Commission hearing (From page 471) related to an application by a Pritzker family affiliated business, to obtain a hotel-casino license, revealed that Stanford Clinton was, for a long period, attorney for the Teamsters Central States Pension Fund. Also disclosed was that Clinton was a law partner of the Pritzker family law firm, that Jimmy Hoffa praised Stanford Clinton's legal work, and that, to avoid conflict of interests when the Pritzker family applied for hotel development loans from the Teamsters Central States Pension Fund, Jenner's law firm, Thompson, Raymond, Mayer, Jenner was representing the Teamsters Central States Pension Fund when the Pritzker family requested loans from that Teamsters Pension Fund.(From page 471)
Although the FBI questioned Paul Dorfman and confirmed Dorfman's association with Jack Ruby, (see Warren Commission exhibit CE 1279) there is nothing in the Warren Commission Report about Jenner's legal representation of Dorfman insurance brokerage client, M. Frank Darling, or about Jenner's law firm's cooperation with Stanford Clinton in representing the Teamsters Central States Pension Fund, linked in the above cited, 1982 New Jersey report, to Allen Dorfman.
In 1946, fearing for his life, Chicago organized crime leader James M. Ragen contacted Clark through newspaper columnist Drew Pearson to obtain the protection of federal agents in exchange for information. A dozen FBI agents were sent to Chicago to interrogate Ragen. After checking and confirming the details of mob activity provided by Ragen, Tom Clark withdrew Ragen's FBI protection for lack of federal jurisdiction to prosecute the suspects Ragen named. Almost immediately, Ragen was seriously wounded by gunfire. Several suspects were arrested but no one was prosecuted due to the disappearance of some witnesses and the lack of cooperation of others. Ragen's condition was improving after the shooting, but he died suddenly in the hospital of mercury poisoning. Drew Pearson hinted in his syndicated column in October 1963 that Clark had told him that the FBI confirmed Ragen's accusations of Chicago mob control by leading businessmen and politicians. This was confirmed in the posthumous publication, eleven years later, of Drew Pearson's Diaries, 1949 Tom Clark had told Pearson that Ragen stated that Henry Crown, the Hilton Hotels chain, and Walter Annenberg controlled the mob.
Despite the disturbing information about Henry Crown, et al., Drew Pearson claimed was provided to him by Clark in 1946, Justice Tom Clark appointed Crown's son, John, as one of two of his 1956 Supreme Court session law clerks. In December 1963, when Chief Justice Earl Warren, acting as head of the newly formed Presidential Commission investigating the death of President Kennedy, suggested the appointment to the Warren Commission of Henry Crown's attorney, Albert E. Jenner, Jr., at that time, Jenner's law firm employed Crown's son, John Crown, as a law associate, and later as a law partner.
Henry Crown and his close friend, Sam Nanini, were reported in March 1977 to have had relationships with organized crime.
As Attorney General, Tom Clark was accused of impropriety in the early parole of convicted Chicago crime boss, Louis Campagna and three others. Sam Nanini wrote a letter in 1947 to the federal bureau of prisons advocating parole for Campagna.
Kylie Jenner Went To Prom On 'Life Of Kylie' And Her Date Was The Real Star
The first episode of Kylie Jenner's new E! docu-series, Life of Kylie, paints a sympathetic picture of the youngest member of the Kardashian/Jenner clan. She declares that talking to a camera about her problems is just like therapy and reveals how much she's missed out on “normal” life events like going to prom. That's when we meet the lucky guy who gets to be Kylie Jenner's prom date, Albert Ochoa.
The shy, charming Rio Americano High School student serves two purposes in the show. First, he shows off Kylie's star power (she gets mobbed at the prom) and the benevolent ways she chooses to use it (Albert is introduced as a loser, by the end of the episode the whole school is chanting his name). Second, he gives Kylie a chance to talk about how much she relates to her outcast date, who his mom calls “an amazing kid,” and “very emotional,” but someone who “forgets how to be a kid” and is bullied by the underclassmen at his school.
Kylie, who was robbed of a childhood by her sisters' reality star dreams (KUTWK started filming when she was only 9 years old) and is a favorite target of the outraged online masses, can certainly relate.
You end up feeling bad for the 19-year-old star as she bends over backwards to make it to Albert's prom in Sacremento, getting the sense that she wants to make this kid's night as much as she's just trying to have one normal teenage experience herself. When her private plane malfunctions moments before taking off for the prom, she almost breaks down about how scared she is to go to the regular airport where paparazzi are sure to harass her. When she's trying on dresses before the event, she reveals that being homeschooled was not her choice and that she would've loved to have gone to prom like a normal kid.
While talking about Albert, Jenner confesses, “I have a soft spot for the outcast because I was the outcast I guess in a lot of ways growing up.” She alludes to the fact that her and Kendall's storylines always took a backseat on KUWTK. It's worth noting that this was probably because both girls were minors for most of the show's run, but you get the feeling that Jenner doesn't really see it that way. She says that she still feels like an outsider, despite her 90 million Instagram followers and similarly huge Snapchat audience. Arriving on a private plane surrounded by a team of adults to the prom of a school she doesn't go to, you wonder if Albert is really the biggest outcast in this situation.
With the exception of her BFF, 19-year-old model Jordyn Woods, Jenner doesn't seem to have any friends who aren't paid to spend time with her. Her hair stylist, makeup artist, and executive assistant are the only other people the show introduces as her supporting cast. We meet all four of her dogs by name, but there isn't a single mention of her famously tight-knit family.
You don't actually get to see the conclusion of Kylie and Albert's prom saga in the premiere episode -- that's promised next week, but hopefully when it airs, we'll learn a little more about Albert and see if him and Jenner really have as much in common as it seems.
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Edward Jenner, (born May 17, 1749, Berkeley, Gloucestershire, England—died January 26, 1823, Berkeley), English surgeon and discoverer of vaccination for smallpox.
Jenner was born at a time when the patterns of British medical practice and education were undergoing gradual change. Slowly the division between the Oxford- or Cambridge-trained physicians and the apothecaries or surgeons—who were much less educated and who acquired their medical knowledge through apprenticeship rather than through academic work—was becoming less sharp, and hospital work was becoming much more important.
Jenner was a country youth, the son of a clergyman. Because Edward was only five when his father died, he was brought up by an older brother, who was also a clergyman. Edward acquired a love of nature that remained with him all his life. He attended grammar school and at the age of 13 was apprenticed to a nearby surgeon. In the following eight years Jenner acquired a sound knowledge of medical and surgical practice. On completing his apprenticeship at the age of 21, he went to London and became the house pupil of John Hunter, who was on the staff of St. George’s Hospital and was one of the most prominent surgeons in London. Even more important, however, he was an anatomist, biologist, and experimentalist of the first rank not only did he collect biological specimens, but he also concerned himself with problems of physiology and function.
The firm friendship that grew between the two men lasted until Hunter’s death in 1793. From no one else could Jenner have received the stimuli that so confirmed his natural bent—a catholic interest in biological phenomena, disciplined powers of observation, sharpening of critical faculties, and a reliance on experimental investigation. From Hunter, Jenner received the characteristic advice, “Why think [i.e., speculate]—why not try the experiment?”
In addition to his training and experience in biology, Jenner made progress in clinical surgery. After studying in London from 1770 to 1773, he returned to country practice in Berkeley and enjoyed substantial success. He was capable, skillful, and popular. In addition to practicing medicine, he joined two medical groups for the promotion of medical knowledge and wrote occasional medical papers. He played the violin in a musical club, wrote light verse, and, as a naturalist, made many observations, particularly on the nesting habits of the cuckoo and on bird migration. He also collected specimens for Hunter many of Hunter’s letters to Jenner have been preserved, but Jenner’s letters to Hunter have unfortunately been lost. After one disappointment in love in 1778, Jenner married in 1788.
Smallpox was widespread in the 18th century, and occasional outbreaks of special intensity resulted in a very high death rate. The disease, a leading cause of death at the time, respected no social class, and disfigurement was not uncommon in patients who recovered. The only means of combating smallpox was a primitive form of vaccination called variolation—intentionally infecting a healthy person with the “matter” taken from a patient sick with a mild attack of the disease. The practice, which originated in China and India, was based on two distinct concepts: first, that one attack of smallpox effectively protected against any subsequent attack and, second, that a person deliberately infected with a mild case of the disease would safely acquire such protection. It was, in present-day terminology, an “elective” infection—i.e., one given to a person in good health. Unfortunately, the transmitted disease did not always remain mild, and mortality sometimes occurred. Furthermore, the inoculated person could disseminate the disease to others and thus act as a focus of infection.
Jenner had been impressed by the fact that a person who had suffered an attack of cowpox—a relatively harmless disease that could be contracted from cattle—could not take the smallpox—i.e., could not become infected whether by accidental or intentional exposure to smallpox. Pondering this phenomenon, Jenner concluded that cowpox not only protected against smallpox but could be transmitted from one person to another as a deliberate mechanism of protection.
The story of the great breakthrough is well known. In May 1796 Jenner found a young dairymaid, Sarah Nelmes, who had fresh cowpox lesions on her hand. On May 14, using matter from Sarah’s lesions, he inoculated an eight-year-old boy, James Phipps, who had never had smallpox. Phipps became slightly ill over the course of the next 9 days but was well on the 10th. On July 1 Jenner inoculated the boy again, this time with smallpox matter. No disease developed protection was complete. In 1798 Jenner, having added further cases, published privately a slender book entitled An Inquiry into the Causes and Effects of the Variolae Vaccinae.
The reaction to the publication was not immediately favourable. Jenner went to London seeking volunteers for vaccination but, in a stay of three months, was not successful. In London vaccination became popularized through the activities of others, particularly the surgeon Henry Cline, to whom Jenner had given some of the inoculant, and the doctors George Pearson and William Woodville. Difficulties arose, some of them quite unpleasant Pearson tried to take credit away from Jenner, and Woodville, a physician in a smallpox hospital, contaminated the cowpox matter with smallpox virus. Vaccination rapidly proved its value, however, and Jenner became intensely active promoting it. The procedure spread rapidly to America and the rest of Europe and soon was carried around the world.
Complications were many. Vaccination seemed simple, but the vast number of persons who practiced it did not necessarily follow the procedure that Jenner had recommended, and deliberate or unconscious innovations often impaired the effectiveness. Pure cowpox vaccine was not always easy to obtain, nor was it easy to preserve or transmit. Furthermore, the biological factors that produce immunity were not yet understood much information had to be gathered and a great many mistakes made before a fully effective procedure could be developed, even on an empirical basis.
Despite errors and occasional chicanery, the death rate from smallpox plunged. Jenner received worldwide recognition and many honours, but he made no attempt to enrich himself through his discovery and actually devoted so much time to the cause of vaccination that his private practice and personal affairs suffered severely. Parliament voted him a sum of £10,000 in 1802 and a further sum of £20,000 in 1806. Jenner not only received honours but also aroused opposition and found himself subjected to attacks and calumnies, despite which he continued his activities on behalf of vaccination. His wife, ill with tuberculosis, died in 1815, and Jenner retired from public life.
Bruce Jenner's First Wife Chrystie Crownover, Four Eldest Children React to His Transition: "We're Just Looking Forward"
Bruce Jenner's first wife Chrystie Crownover admitted that she was absolutely "shocked" when her ex-husband revealed to her in their first year of marriage that he was struggling with gender identity issues.
(At this time, Bruce Jenner has not chosen to publicly identify as a woman and so E! News will continue to refer to him as Bruce and use male pronouns, until he indicates otherwise.)
Jenner and Crownover were married from 1972 to 1981, but he confided in her early on. Although she was very surprised, she kept his secret because she knew that it took a lot of respect and trust to confess something like that. "I can't remember the exact words because it was such a shock to me, but he opened up his heart and confessed, and he had to share this deep, dark secret," she told Good Morning America's George Stephanopoulos Monday.
"He told me he wanted to be a woman, and understandably, I didn't know what to say," she added.
Although she understood, the mother of Jenner's children, Burt and Casey Jenner, struggled to process what it all meant. "It's so hard to wrap your head around it, particularly because he was such a manly man," said Crownover. "He never indicated anything feminine in his demeanor."
Despite being honest about his confusion, Crownover insisted that it never became an issue in their marriage, and that it didn't cause their split. "It wasn't really a problem," she said.
Jenner watched Diane Sawyer's 20/20 interview with many of his family members Friday, and his first wife revealed that he was "tearful at times," which broke her heart.
"I reached over and tried to give him a little comfort," she said. "It broke my heart for him."
The Kardashian-Jenners Through the Years: Relive Two Decades of Epic Fashion
It's hard to argue that the Kardashian-Jenner family are not the most famous faces (and bodies and Instagram accounts) on a worldwide scale. The stars behind Keeping Up With the Kardashians have bared it all on reality TV—and the red carpet.
From Kim Kardashian's Met Gala gowns to Kendall Jenner's runway-ready ensembles, the sisters know how to rock just about anything. Khloe Kardashian even made her signature hip-hugging jeans into their own empire by co-founding Good American in 2016. Kim K. brought her barely there undergarments to market with SKIMS and Kourtney Kardashian gives style tips on lifestyle website Poosh.
And who can forget Kylie Jenner's plump pout that revolutionized the beauty industry and catapulted her to billionaire status? Take a strut down memory lane with the Kardashian-Jenner stars' best looks over the years. After 20 seasons of KUWTK, their fashion choices are basically a time capsule in itself!
Keep scrolling to see all the memorable red carpet moments over the years ahead of tomorrow's KUWTK series finale on E!.
Early smallpox vaccine is tested
Edward Jenner, an English country doctor from Gloucestershire, administers the world’s first vaccination as a preventive treatment for smallpox, a disease that had killed millions of people over the centuries.
While still a medical student, Jenner noticed that milkmaids who had contracted a disease called cowpox, which caused blistering on cow’s udders, did not catch smallpox. Unlike smallpox, which caused severe skin eruptions and dangerous fevers in humans, cowpox led to few ill symptoms in these women.
On May 14, 1796, Jenner took fluid from a cowpox blister and scratched it into the skin of James Phipps, an eight-year-old boy. A single blister rose up on the spot, but James soon recovered. On July 1, Jenner inoculated the boy again, this time with smallpox matter, and no disease developed. The vaccine was a success. Doctors all over Europe soon adopted Jenner’s innovative technique, leading to a drastic decline in new sufferers of the devastating disease.
In the 19th and 20th centuries, scientists following Jenner’s model developed new vaccines to fight numerous deadly diseases, including polio, whooping cough, measles, tetanus, yellow fever, typhus, and hepatitis B and many others. More sophisticated smallpox vaccines were also developed and by 1970 international vaccination programs, such as those undertaken by the World Health Organization, had eliminated smallpox worldwide.
Founded in 1877, the Illinois State Bar Association (ISBA) today provides professional services to 30,000 members. The ISBA also educates and provides information to the public about the judiciary and the legal profession. As a private, nonprofit corporation, ISBA and its voluntary members strive to improve the profession and expand access to justice.
On Jan. 4, 1877, 88 lawyers from 37 counties met in the Sangamon County Courthouse in Springfield and agreed to form the Illinois State Bar Association. At that time, the founders adopted as Article II of its constitution the following goals:
[T]o cultivate the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to elevate the standard of integrity, honor and courtesy in the legal profession, to encourage a thorough and liberal education, and to cherish a spirit of brotherhood among the members thereof.
Highlights of ISBA’s history include:
In 1879, the ISBA made Myra Bradwell and Ada Kepley honorary members, even though both had been denied licenses to practice law because they were women. It was a daring step for an infant organization.
In the late 1800s, the legal profession was not held in high esteem due largely to the low educational requirements in admission standards. In 1897, the ISBA and Chicago Bar Association responded by making proposals to the Illinois Supreme Court to create a state board of law examiners and to require a high school education for admission to the bar. These recommendations were adopted and admission to the bar became steadily more challenging.
The ISBA was influential in the consolidation of the Illinois Supreme Court’s three grand divisions into a single court in 1897, and later in locating the court in Springfield, where the current building was completed in 1908. In 1931, the ISBA became a pioneer in the fight against the unauthorized practice of law when it brought an action against People’s Stock Yards State Bank. The case established the principle that the supreme court has inherent power to punish any corporation or unauthorized person who practices law without a license.
In 1933, after 22 years of effort by the ISBA, the Illinois General Assembly adopted the Civil Practice Act of 1933, Illinois’ first modern system of civil practice and procedure. And in 1935, the ISBA worked with competing legal publishers to arrive at a state bar association edition of the Illinois statutes that could be cited as legal authority and is still in use today.
In 1962, the ISBA spearheaded the successful campaign for revision of the judicial article of the Illinois Constitution. This sweeping change led to the creation of our modern judiciary and is generally considered to be the ISBA’s most important public initiative.
The ISBA was also instrumental in the adoption of the Criminal Code (1961) and the Code of Criminal Procedure (1963). In the 1970s and 80s, the ISBA was a strong advocate for the no-fault divorce provisions of the Marriage and Dissolution of Marriage Act and for independent administration of decedents’ estates, both of which became law. In Congress, the ISBA played a significant role in drafting language governing generation-skipping tax transfers. The ISBA also was instrumental in creating the Illinois Institute for Continuing Legal Education, the Client Security Fund of the Bar of Illinois, the Lawyers’ Assistance Program, and the Lawyers Trust Fund.
Past ISBA presidents have included:
- Orville H. Browning, ISBA President in 1881, was appointed to fill the U.S. Senate seat of Stephen A. Douglas after Douglas’ untimely death
- Justice of the United States Supreme Court, David Davis, appointed by President Abraham Lincoln. Davis served as the ISBA’s president in 1884
- Melville Fuller of Chicago, who was the ISBA president in 1886 and served as Chief Justice of the United States Supreme Court from 1888 to 1910
- Lyman Trumbull, ISBA President in 1892, served as U.S. Senator from Illinois during the Civil War and co-authored the 13th Amendment to the U.S. Constitution, abolishing slavery.
- Albert E. Jenner, Jr., ISBA President in 1949, served as assistant counsel to the Warren Commission and as special counsel to the House Judiciary Committee during the Watergate scandal.
The ISBA is proud to have as Honorary Members: President Barack Obama, Michelle Obama, Hillary Clinton, and author Harper Lee, whose depiction of Atticus Finch in "To Kill A Mockingbird" stands as an unparalleled example of legal integrity.
In 2002, the ISBA celebrated its 125th anniversary with celebrations at the Old State Capitol Building in Springfield. Then-Gov. James R. Thompson attended the ISBA’s celebration of its centennial in 1977 and was the keynote speaker for the association’s 125th anniversary banquet.
In 2009, to honor the 200th anniversary of President Abraham Lincoln’s birth, the ISBA commissioned a bust of Lincoln, which was presented to the people of Illinois. The bust, seen here, is displayed inside the Illinois Supreme Court Building in Springfield, which is located one building north of the ISBA’s headquarters.
The ISBA continues to promote ideas and proposals that strengthen the legal profession and the confidence and trust the public has in it. The association actively addresses issues such as the unauthorized practice of law, initiatives to improve Illinois courts, how to select and evaluate our judges, support for pro bono efforts and legal services for the disadvantaged, and much more.