Did Clinton Harass Paula Jones?

Dear Stu:

This is going to be fun. Before too long, I hope, we can talk about what really interests me, which is that sex is back at work–and that might just be fine, if we could just learn to respect each other. My students wear unbelievably short skirts to interviews and assert the right to flirt to equalize things with the guys, who talk about sports. I think they might be right. So, first Anita and Paula, and we can fight about who is consistent, and who has bad motives, and then on to what matters.

Let me begin. I don’t really think of either of these as sexual-harassment cases, if you want to know the truth. What troubled me in the Anita Hill-Clarence Thomas affair was less what he said to her a decade ago (you know me, I would’ve laughed and told him to get lost, but she’s not me, and he was chair of the Equal Employment Opportunity Commission–which makes him pretty “shabby” in my book, but wouldn’t disqualify him from a seat on the Supreme Court) than what those senators did to her, and how Clarence Thomas–a man I thought unqualified to serve on the Supreme Court–responded by playing the race card and turning himself into the victim of a racially motivated attack. I wouldn’t want Johnnie Cochran to be on the Supreme Court either.

The Republican senators didn’t have the guts to stand up there and say, “Look, even if this guy made jokes about tits and pubic hair a decade ago, so did a lot of us, and some still do, and some women like it and some don’t, and if he knew you didn’t, he should’ve stopped. But that’s not enough to disqualify him from serving on the court.” Instead, they paraded around piously saying how awful it would be if it were true, and then proceeded to attack her as a nut and a slut. That’s what made me angry. Then, in came Clarence Thomas the next day, the victim of the high-tech lynching of an uppity black. This from a guy who would not have been sitting there, had he not been George Bush’s “up yours” to the civil-rights community and African-Americans. Yuckeroo.

And Paula Jones? The woman who took a first-name reference in a conservative publication (the only institution involved, by the way, that she hasn’t sued) and turned it into a federal case and a career. She doesn’t need my help, Stu, and she doesn’t deserve it. She’ll get her day in court, but she shouldn’t get to hold the presidency hostage. I read your careful piece, and one and only one thing became clear to me: This is just one more political assault on the president, politically motivated and politically pursued. You can’t tell me this woman didn’t know whom she was hiring as a lawyer, whom she was allying herself with, whom she was using, and who being used by. Do you truly think her that stupid? I have more respect than that, at least. Everyone in Arkansas knows who Cliff Jackson is, for goodness sake. These are the people who have fought against civil-rights laws that protect women.

And the president? You convict him for hiring a good lawyer and pursuing a strategy of delay. Of course. He has to hire a good lawyer. Do you really think this was going to go away on its own? A woman charging that the president asked for a blow job in a hotel room is not a story that would disappear if he didn’t hire a good lawyer. And even if every word of it is untrue, it’s the last thing you want to have to deal with; depositions in which you’re asked about distinguishing marks. In an election year? That’s not evidence of guilt.

But what if she’s telling the truth? What about those witnesses?

Here’s my law professor’s answer:

First, I don’t believe that the “facts” she has alleged are sufficient to state a cause of action under Title VII (whose statute of limitations she missed), much less the old civil-rights statutes that she’s trying to invoke. (Do you think Congress was thinking of such incidents when it passed the Ku Klux Klan Act after the Civil War?) There is no quid pro quo alleged, and hostile-environment cases require a pervasive pattern of severe harassment. Moreover, there is a substantial factual dispute in the accounts you report as to whether any advances were “welcome,” and under the Supreme Court’s decisions (which I don’t happen to like very much), all the “big hair-big flirt” stuff will come in under welcomeness.

Second, even if the facts alleged were sufficient, civil suits against the president should be stayed during the course of his presidency, at least in the absence of extraordinary factors (somebody dying, irreparable injury, etc.)–not present here. I can give you Kathleen Sullivan and my brief on this for the circuit court. She wrote it, and it was very persuasive, but we’ll lose everybody else. The brief relates to the issue pending in the United States Supreme Court–whether Jones’ cause of action should be stayed until after Clinton’s term. I think it should be. I think this position is not only good for the country, but also respects the importance of the electoral process. Jones’ claim–if you call it that–arose before the 1992 election. A rule that says that if you want to sue the president, do it before he gets elected or wait till his term is done is one that encourages valid claims to be brought before the election, when they can be considered by the electorate, not afterward. This doesn’t mean the president is above the law, just that if you want to take him to court, you do it before he becomes president.

Here’s the other piece:

So what.

It’s “shabby,” as you put it. I don’t disagree.

But sexual encounters among people who work with each other are not against the law, and the fact that you and I may not be having them anymore doesn’t mean everyone else is ready to give them up.

If a colleague said to me, “Should I come on to a student in my class?” you know what I’d say: “Don’t do it. True love can wait a semester.” I’d tell him to be careful, and not do it, not just because of the dangers of misunderstanding, legal action, etc., but because I really do believe that such relationships are fraught with all kinds of dangers of abuse of power.

And if my daughter someday says to me, “If a man you barely know invites you to a hotel room alone in the middle of the afternoon or the night or any other time of day, what should you do?” it won’t take me long to explain “no” in a hundred languages.

But there’s no law saying he can’t ask, and there’s no law saying she can’t go, and in my surveys of the world, no one but old fogies like us seems interested in someone else enforcing such rules, even if they are the best ones to live by. After all, where else do you meet people?

So what if Jones is telling the truth? She flirted and caught his eye, and the trooper asked her if she wanted to come upstairs, and she did, and they had some kind of encounter (this is he said-she said land, I’m not touching it), and she said no, and he said (this is according to her) that he didn’t want to make her do anything she didn’t want to do, and to have her boss call him if there was any problem with her being late, and that was that, and she never heard from him again. He asked. She said no. He said OK. She left. He got elected, and appointed Ruth Bader Ginsburg and Steve Breyer to the Supreme Court, signed the Family Leave Act, vetoed the partial-birth abortion ban. …

All the best,