The Political Interest: Why Paula Jones Should Wait

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"Leave him alone." In plain English those three words sum up the case Bill Clinton's attorney will soon argue in his effort to defer Paula Jones' sexual- harassment lawsuit until the President leaves office. The drift of lawyer Robert Bennett's thinking has been known for some time, but sources familiar with the latest version of his brief, and the impressive appendix of historical writings that supports it, have provided TIME with the details of Bennett's argument. The key points, which highlight the inextricable connection of political and legal considerations, are these:

1) The Jones lawsuit is a case of first impression, meaning that the courts have never before been asked to rule on the essential question: Does presidential immunity extend to conduct allegedly undertaken before a Chief Executive assumes office? Bennett will assert that the logic applied by the Supreme Court in its 1982 ruling in Nixon v. Fitzgerald should apply here as well. (After telling Congress that cost overruns on the C-5A transport plane could reach $2 billion, Ernest Fitzgerald, an Air Force management analyst, was fired. President Nixon took responsibility for his dismissal, and Fitzgerald sued Nixon for damages.) In Fitzgerald, the court held that a President is absolutely and forever safe from lawsuits attacking his official acts. "Because of the singular importance of the President's duties," the court said, "diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government."

The decision to seek delay, rather than dismissal, is a political one. "Arguing that Jones' claim should be thrown out for good would be a public relations disaster," says a Clinton adviser. "Postponement permits her to go forward later and affirms the principle that the President is not a king, that + nobody is above the law."

2) If Jones proceeds now, Bennett plans to argue, the decision could inspire copycat lawsuits. In Fitzgerald, Chief Justice Warren Burger was worried that uncontrolled litigation, which sometimes is used as "a mechanism of extortion," could spur a President's political opponents to file suits simply to distract him from his duties. After quoting Burger, Bennett's draft says "one can readily imagine" further claims, "especially involving unwitnessed one-on-one encounters that are exceedingly difficult to disprove. Moreover, given the moral annihilation approach to modern politics, one can easily envision political operatives recruiting putative plaintiffs to embarrass a President."