Defending the President

A non-Nixonian strategy for avoiding that messy sexual harassment trial

Michael McMenamin from the October 1994 issue

(Page 2 of 2)

· In a case where a co-worker made a "verbal sexual advance," touched the victim's breast, and grabbed her buttocks, the conduct was not "sufficiently severe or pervasive," since the victim continued working at the job for nine months.

Isolated incidents like a pubic hair on a Coke can or recounting a pornographic film, as Thomas was accused of doing, pale by comparison. Packwood's clumsy advances and awkward gropings are not much closer. Clinton's alleged conduct is obviously more egregious but still eminently defendable under existing law.

We just argue that it wasn't "sufficiently severe or pervasive" to create an abusive working environment or unreasonably interfere with Jones's work performance. Jones worked for Arkansas for another year and a half after her hotel encounter with Bill.

But our real ace in the hole, what's going to get us out of this case quickly, is one additional and critical fact: It only happened once. As one court has said, there is a "nearly universal consensus of federal authority holding that generally a single incident of sexual harassment will not create a hostile work environment." Actually, it is universal-not one federal court has ever found a single incident to be sufficiently severe to constitute a hostile environment, even though some federal courts have admitted that a single severe incident-for example, rape or violent sexual assault-could do so.

So what's the catch? How can our "no harm, no foul" defense go wrong? Easy. There's always a first time for anything, and the Supreme Court of Michigan has already held that a single incident created a hostile environment. More troubling for Clinton, however, is the single incident that the Michigan Supreme Court found to be sexual harassment. The plaintiff, a veterinary technician, had a five-minute encounter on a couch with the owner of the company, and she conceded he might have mistakenly believed she wanted to kiss him. The owner then grabbed her by the neck and forcibly attempted three times to kiss her, physically restraining her for about one-and-one-half minutes.

By contrast, the incident with Paula Jones lasted at least 15 minutes, but she admits no force was used-he asked (politely, if crudely), and she said no. End of story? Not quite. Jones also claimed that Clinton exposed himself, which is a sufficiently shocking act that you cannot predict in advance how the judge-Susan Webber Wright, a Republican Bush appointee-will react when Jones's lawyers ask her to follow the Michigan case.

What about presidential immunity? You know, "the king can do no wrong"- or, more accurately, the "elected politicians are above the law"-defense. The technical legal phrase is "the Nixon gambit." Should we use it? Well, we could. Some lawyers will do anything-which is why Clinton is not using white rats to defend him. After all, in a collective display of insanity, the U.S. Supreme Court (lawyers all) held in 1982 that Nixon had absolute immunity for official acts committed while in office. So yes, we could argue that our client can't be sued anywhere, anytime, for anything. But it would be wrong, that's for sure.

Here's why. Clinton wasn't in office when it happened, and arguing that soliciting oral sex was an official act would be a stretch, even for a lawyer. Plus, it's a delaying tactic, and it's bad public relations. If we raise immunity and we win, Jones can immediately appeal. If we lose, we can immediately appeal. All that guarantees is that this case is going to be around for the next two years, through the 1996 presidential election campaign. So keep in mind our strategy: It's win, stupid, as soon as we can. We don't need delays.

On to the tactics. Clinton's lawyer, Bob Bennett, is in the Washington office of a huge New York law firm known for its hardball, take-no-prisoners litigation style. He might well take the same approach here and harass Jones and her lawyers by burying them in paper with motions, briefs, document requests, interrogatories, requests for admissions, and deposition notices-all the weapons in the modern litigator's arsenal. He might well do that, but it would be a mistake. Why? Keep in mind our strategy. We want a quick victory before Jones's lawyers have a chance to take their own depositions-testimony under oathÑof Arkansas state troopers, Gennifer Flowers, and other assorted Clinton mistresses.

Here's how we do it. we don't file an immediate motion to dismiss claiming that Jones's complaint is legally insufficient. We could easily lose such a motion, and that wouldn't look good. Instead, we promptly take the depositions of Jones and the Arkansas state employees who ordered her transfer and granted her pay increases. We limit our questions to the oral-sex request, the transfer and merit pay, and whether the hotel incident affected the way she did her job.

We then go to the judge and ask her to dismiss the case on the two substantive legal issues we examined earlier quid pro quo and hostile environment. We also ask the judge to prohibit Jones's lawyers from taking any potentially embarrassing depositions from troopers or bimbos pending her decision on our request. The judge ought to be receptive. We're conserving the court's resources, and if we lose, the game will go on, and Jones's lawyers will have a shot at taking their embarrassing depositions. But unless there's a smoking gun out there about the transfer or pay increases, or if Jones can prove she was so distraught over the incident she wasn't able to work without undergoing extensive therapy, then Clinton ought to walk-no illegal sexual harassment.

There you have it. Even if Clinton's guilty in the hotel oral-sex incident, we get him off the hook; his handlers proclaim his vindication and the lack of "legal" merit in his accuser's case; most people will think he really has been found inno-cent; a jury of their peers will never get to decide what actually happened between Bill and Paula in that hotel room; we avoid unseemly comparisons to Nixon and accusations about being above the law; the state troopers don't get to tell their pandering stories under oath; Bill's bimbos stay in the closet; and we head off with our fees to the bank. Is this a great country or what?

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