Among the many surreal moments that made up Donald Trump’s 2016 presidential campaign, one of the most remarkable was the Facebook Live press conference he held before the second presidential debate to help deflect the impact of the now-infamous 2005 Access Hollywood tape. Sitting there with Trump in casual loungewear and a blingy hat, along with two other women who had accused Bill Clinton of sexual assault or harassment, was 49-year-old Arkansan Paula Jones, the woman who had sued a sitting president and likely changed — if you add up the George W. Bush voters who hoped to “restore honor and dignity” to the White House in 2000 — the course of American history. Believe it or not, Jones may not be done influencing history just yet.
Chances are when President Trump — who once labeled Jones “a loser” in a 1998 NBC News interview — first resurrected her case to help bolster his candidacy, he never contemplated the role it could play in unraveling his presidency. Over two decades ago, Clinton attempted to delay a sexual harassment suit filed against him by Jones until after he left office. In it, she alleged that in 1991, the then-Arkansas governor had exposed himself to her in a Little Rock hotel room while she was a 24-year-old state employee. The resulting case, Jones v. Clinton, went all the way to the Supreme Court, which held in a unanimous decision in 1997 that executive privilege did not protect a sitting president from lawsuits filed against him for private conduct.
ONE MAJOR WEAPON FOR ATTACKING THE POLICIES OF A SITTING PRESIDENT IS THROUGH LITIGATING HIS PRIVATE CONDUCT. (*!*)
You know the rest of the story: Clinton was forced to submit to hours of depositions, and the case led Jones’ lawyers to a White House intern named Monica Lewinsky. In addition to humbling one president, the case set a powerful precedent for presidents who misbehave in their private lives — one that could get a workout under Trump’s administration. Jones v. Clinton is “horrible news” for Donald Trump, says Northeastern University law professor Daniel Urman. By far the most litigious president in American history, Trump and his various business entities have been involved in as many as 4,000 lawsuits over the years. Despite paying $25 million to settle three fraud lawsuits against Trump University just days before his inauguration, the new president faces, according to a USA Today count two weeks prior to the inauguration, 75 ongoing cases.
As the Jones case makes clear, Trump will not be able to lean on his duties as president to excuse himself from the proceedings in these cases or to shield himself from liability. The pending litigation will take up time, draw additional scrutiny to his business practices and give political opponents plenty of opportunities to conduct discovery and dig up more dirt, including perhaps a Lewinsky-level smoking gun. And, let’s face it, as with Clinton, one major weapon for attacking the policies of a sitting president is through litigating his private conduct, both in court and in the court of public opinion.
Which brings up a fascinating side note: Many of the same folks who will be helping to defend Trump in these matters have some very close ties to the group of young conservatives — who call themselves “the Elves” (as in Santa’s hidden magical workers) — that spent years lobbying legal grenades at President Clinton from the other side. Case in point: George Conway III, a high-powered D.C. lawyer at the prestigious firm Wachtell, Lipton, Rosen & Katz, and — you guessed it — husband of senior Trump adviser and “alternative facts” proponent Kellyanne Conway. Conway helped write Jones’ Supreme Court brief and also penned an influential op-ed in the Los Angeles Times at the very beginning of the Jones ordeal arguing that Clinton was on the shaky legal ground. Granting the president immunity “would place Presidents above the law,” Conway observed, and such a situation “smacks of the privilege of a sovereign or an autocrat — not a president of a democratic republic.”
Of course, there is one way that Trump could rise above the law and avoid facing the barrage of private lawsuits — and it’s an escape hatch that comes straight from the Supreme Court’s opinion in Jones v. Clinton itself: “If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation.”
Let’s hope the Republicans in Congress, some of whom once led the pursuit of Clinton, heed Conway’s words about privilege and autocracy in the litigious days ahead, and abstain from revisiting the 1990s in reverse by taking action again — this time to shield a sitting president from the consequences of his private conduct.