William H. Rehnquist: We'll hear argument now in No. 95-1853, William Jefferson Clinton v. Paula Corbin Jones. Mr. Bennett.
Robert S. Bennett: Mr. Chief Justice and may it please the Court: I am here this morning on behalf of the of the President of the United States, who has asked this Court to defer a private civil damage suit for money damages against him until he leaves office.
Sandra Day O'Connor: Is the request to totally dismiss the suit or to permit delay of the trial and any court appearance... in-court appearance or that position or that sort of thing?
Robert S. Bennett: It is to delay the trial of the case and to--
Sandra Day O'Connor: How about discovery?
Robert S. Bennett: --And the discovery of the case. There is--
Sandra Day O'Connor: How about discovery of people who are not the President, other witnesses and things like that?
Robert S. Bennett: --That is correct, Your Honor. We... as--
Sandra Day O'Connor: You... you want to delay that as well?
Robert S. Bennett: --I want to delay that as well. However--
Sandra Day O'Connor: Should that be a general rule if preservation of evidence becomes crucial in a case?
Robert S. Bennett: --As we discussed in the District Court below, Justice O'Connor, we have agreed, and the District Court noted, that if there's a danger of the loss of any evidence, that we would cooperate to preserve it and make use of the Federal Rules of Civil Procedure.
Antonin Scalia: Well, what if you wouldn't go up and what if the District Court... what if the court below disagreed with you?
Robert S. Bennett: Well, that's--
Antonin Scalia: I mean, what... I'm trying to figure out what the rule of law you're urging upon us here.
Robert S. Bennett: --The rule of law that we are urging upon you, Justice Scalia, is unless there are exceptional circumstances in a case, the President of the United States should not be subject to litigation, either at trial or in discovery. Unless there is some compelling necessity, he should not be taken away from his constitutional duties.
Antonin Scalia: Is that issue a Federal... is it a Federal... suppose the suit were in State court, and the State court decided that the testimony of someone who was not the President is important to be preserved. Does that become a Federal question?
Robert S. Bennett: Yes, it's a Federal question, because--
Antonin Scalia: So if that State court's jurisdiction would be appealable here, or would the whole case be removable to Federal court, or--
Robert S. Bennett: --Well, I don't know how you would move a case from State court unless there is diversity. And that's why this Court must issue a constitutional ruling in this case. Because, otherwise, this... this complaint, and other complaints, could be brought into any State court in the country and command the President's time.
Antonin Scalia: --But the constitutional ruling you're asking of us is not that the suit cannot be brought.
Robert S. Bennett: Well, we're asking--
Antonin Scalia: So you're saying that the suit can be brought. And presumably it can be brought in State court?
Robert S. Bennett: --We are saying the suit against the President of the United States can be brought. It can be brought in a State court.
Antonin Scalia: Right.
Robert S. Bennett: It can be brought in a Federal court. But--
Antonin Scalia: Right. Now, these... these questions of whether you have to preserve the witnesses' testimony... it's important to the case or not... do they render the case removable to Federal court?
Robert S. Bennett: --Yes, Your Honor, I believe that they do.
William H. Rehnquist: They do. And I take it, just fading memories of witnesses, over a period of, say, 4 or 5 years, would not be sufficient to invoke the exception provision that you're talking about?
Robert S. Bennett: I believe that's correct, Your Honor, particularly in this case, where the plaintiff had almost 20 months when Mr. Clinton was... was the governor.
Ruth Bader Ginsburg: Mr. Bennett--
Anthony M. Kennedy: --And I take it that... I take it that since you say... and I think you're correct that this must be a privilege that's applicable in State courts, otherwise it would be a loser and it wouldn't give the protection you think the President needs... I take it that means you cannot rely on separation of powers as the constitutional theory, as the constitutional premise, for your argument; you have to rely on some other constitutional doctrine?
Robert S. Bennett: I don't agree with that, with all due respect, Your Honor. I think this is a separation of powers case. Because if this... if this Court permits this litigation or other litigation like it to go forward, any State judge in the country or any county court judge in the country could command the President's time.
Anthony M. Kennedy: Right. But separation of powers isn't a doctrine that we impose on the State. Separation of powers is designed to confine each branch of the Federal Government to its appropriate constitutional scope.
Robert S. Bennett: Well, but I... I would find it hard to believe that this Court would say that separation of powers would apply in a Federal court proceeding, but that any county or State judge could virtually destroy the power of the President under the Constitution in his Article II duties.
Anthony M. Kennedy: Well, I... I understand there's a Federal interest. But it seems to me what you're saying is that the inherent nature of the President's office requires that the States be constrained in this way. But that's not separation of powers.
Sandra Day O'Connor: Then it's Federal sovereignty. But I... I agree with the concerns expressed in the question by Justice Kennedy that it's if it were a suit in State court. It is very difficult to shoehorn it into some kind of separation of powers notion.
Robert S. Bennett: I... I understand.
Sandra Day O'Connor: The supremacy clause... I don't know whether that bears on it... but certainly not separation of powers.
Robert S. Bennett: I... I understand that, Your Honor, but--
Ruth Bader Ginsburg: Mr. Bennett, is there any experience in States with the temporal immunity with respect to a governor that you are asserting here with respect to the chief officer--
Robert S. Bennett: --We have found none, Your Honor.
Ruth Bader Ginsburg: --And is it necessary... you said we must decide this as a constitutional matter because of the State court situation... this could be dealt with in the Federal courts as a matter of Federal common law. Isn't that where the immunities come from of executive offices? And who knows if it would come up in a State court. A State court might have such a similar... recognize such a similar immunity as a matter of their common law. So why must we now assume that the State courts will not have such a... such an immunity and reach out for a constitutional question instead of saying here's a suit in Federal court and we can deal with it as a matter of Federal common law?
Robert S. Bennett: I'm not quite sure I understand the question, Your Honor, but I think I do. I am certainly saying that this Court could decide this case without deciding the constitutional issue. I think that this Court could say that when the District Court judge stayed the trial, she had an inherent power, under the Landis case... the Supreme... this Court's decision in Landis... to stay the trial. And I don't think you would have to get to the constitutional considerations.
Antonin Scalia: Well, I... I find it difficult to adopt such a Federal common law rule if it were... if it were so easily frustratable. I mean to say that there is a Federal common law rule that you can interfere with the President's duties by... by subjecting him to civil suit would be silly if any State could subject him to silly... to civil suit. I mean, don't you have to... have to tell me that this Federal common law rule you're asking me to adopt is one that will have some effect? And it will have no effect if the States can do the same thing?
Robert S. Bennett: Yes, I agree it would be very silly for any county judge or any State judge to start deciding on the priorities of the President of... of the United States.
Antonin Scalia: So I have to get to State courts somehow. Any general rule we adopt surely has to be one that we can enforce upon State courts as well as Federal.
Robert S. Bennett: Oh, that's of most importance to this Court, particularly since the fact that you now have long-arm statutes which were not common in the days of our founders, and you could drag the President into any court. You know, what's unprecedented here... what is unprecedented here is the notion of taking the President of the United States of America, in whom the full executive power resides, and subjecting that President to any State court or any local court in the country. Is this Court--
Antonin Scalia: Or even worse, any Federal court. Because there you have, in addition, separation of powers.
Robert S. Bennett: --Or any... or in any Federal court. And I think, interestingly, Your Honors, if you... if you just transpose the facts of this case to the Federal system... let's say that Miss Jones were a Federal employee and let's say that Mr. Clinton were the President, and let's say that instead of State troopers, we're talking about Secret Service people... it would be my view that your very far-reaching decision in the Fitzgerald case, which... which gave the President absolute immunity for... for acts within the outer perimeters, would probably... would probably prevent this case from... from going forward.
William H. Rehnquist: Well, the record in Fitzgerald was based on a fear that unless you gave the President absolute immunity, as I understand the opinion, you... you... he would not vigorously exercise his official powers as President. I don't see how that element is involved here.
Robert S. Bennett: I agree with you, Mr. Justice... Mr. Chief Justice, that... that element is not present here. But in the Fitzgerald opinion, in which you joined with Justice Powell, the rationale for that decision goes way beyond the chilling effect. You talked about intrusion on the President's time.
Ruth Bader Ginsburg: But, Mr. Bennett, that sentence that you feature was followed up by... by these words, "as in the case of prosecutors and judges. " And prosecutors and judges also enjoy absolute immunity for their acts in the course of their office. But do they enjoy any kind of immunity for... for conduct unrelated to their office?
Robert S. Bennett: No. No, Justice Ginsburg. But... but you went much further. I don't mean you personally. But you went much further in the Fitzgerald case. This was the core of the dissent of Mr. Justice White. He said that you are not giving absolute immunity simply to core functions. You are giving absolute immunity to the outer perimeters of the office.
Ruth Bader Ginsburg: But I think we're mixing up two things. We're mixing up, one, the total immunity, because you want the decisionmaking to be unfettered, and then the immunity that's, as you say, temporary, temporal, just not whether but when.
Robert S. Bennett: Right. We're not asking for--
Ruth Bader Ginsburg: And there are different considerations involved in the two, are there not?
Robert S. Bennett: --Yes. Yes, Justice Ginsburg. That... that is correct. But you must remember, the fundamental difference between the Fitzgerald case... or one of the fundamental differences is this Court extinguished Mr. Fitzgerald's rights for all time, involving a case where you didn't even have a sitting President. Mr. Nixon hadn't been in office, to the best of my recollection, for 4 years. Here you have a sitting President. And all we're saying is we'll give Miss Jones her day in court, but let's not do it now.
David H. Souter: But, in effect, I... I assume you're arguing that it is interference or the risk of interference with the actual presidential duties during the 4-year term that is the source of whatever privilege you request; isn't that right?
Robert S. Bennett: That's correct.
David H. Souter: Right. Now, how does that take you from interference with the President himself, as... as a deponent or as a witness or simply as a party attending a trial, and... and go to the further extent of... of giving you some kind of a privilege to preclude discovery, which does not personally involve the President? How... how is the interference there enough for you?
Robert S. Bennett: Well, Mr. Justice Souter, it's the realities of real-world litigation. Mr.... my brother at the bar, Mr. Davis--
David H. Souter: Well, it's going to keep you busy. But the President presumably-- [Laughter] --I mean, the President isn't going to attend these depositions; you are.
Robert S. Bennett: --But in the real world of litigation, Mr. Justice Souter, do you think when Mr. Davis, as he... as he claims, that he's going to be deposing all of the troopers; and any time the President of the United States has come into contact with a member of the opposite sex, he intends to inquire of that; this is a conspiracy complaint; they talk about pattern of conduct--
John Paul Stevens: Yes, but, Mr. Bennett--
Robert S. Bennett: --don't you think I'm going to have to talk to the President of United States about all those events?
John Paul Stevens: --Well, I assume-- --Mr. Bennett, do you think all those events are relevant to this case?
Robert S. Bennett: I think some trial courts would say they are not and some trial courts might... might say they are. We haven't gotten to that question yet.
John Paul Stevens: How long do you think... how long... how long do you think it will take to try this case?
Robert S. Bennett: It's impossible to say. I can tell you the President has spent... personally spent a substantial amount of time on this case already. I mean, this is a personal... the very nature of this case is so personal that it would require his heavy involvement.
Sandra Day O'Connor: But... but there are... there are two elements here really... a concern about some conflict with a judge deciding how to weigh the interests of the President in attending a NATO meeting or something versus a desire to avoid damage control politically. I mean, is there an element of that in here? And does that enter into the constitutional balance?
Robert S. Bennett: I... I think the President is a political figure and... and deals in the political... political marketplace.
Sandra Day O'Connor: Yet could be the concern about damage control, at bottom, would motivate, not necessarily this President, but any President, in wanting to spend a little time with the lawyer as these allegations are made. But is that part of our constitutional balance?
Robert S. Bennett: Well, Your Honor, I don't think we can... I think... there's no perfect answer to this. But I certainly don't think that you can permit the courts to start deciding what presidential priorities are or are not.
Antonin Scalia: Why can't we wait until the President asserts such a conflict? It's never happened in a couple of hundred years. Why can't we wait until the court says, Mr. President, I want you here for this deposition and, if you don't come, you're going to lose the case; and the President says, I'm sorry, I have to go to a NATO meeting? Why don't we wait for that, what seems to me, very unlikely situation to arise?
Robert S. Bennett: Well, I'm not so sure, in today's climate, that it is unlikely to arise. But I suppose you could wait, as you say. But I have a specific case I have to deal with now.
William H. Rehnquist: Thank you, Mr. Bennett. General Dellinger, we'll hear from you.
Walter E. Dellinger, III: Mr. Chief Justice and may it please the Court: Let me begin by responding to Justice Scalia's question about the source of law. It is constitutionally based. In our view, Justice Scalia, it comes from this Court's... the same basis that this Court stated in its different opinion in Fitzgerald, where they considered the immunity there, quote, a functionally mandated incident of the President's unique office. That is, it arises from Article II. That's--
Sandra Day O'Connor: Yeah, but to the extent that Nixon v. Fitzgerald involved some activity of the President that relates to his duties in office as President, that is an element that does not extend to this case.
Walter E. Dellinger, III: --That is correct, Justice O'Connor.
Sandra Day O'Connor: And there may have been Folsom language, as there often is, in Court opinions. But we have to get back to the basic source of what is it in the Constitution that we look to, to govern this... this issue?
Walter E. Dellinger, III: You are correct, Justice O'Connor, that it is a different issue in Fitzgerald. But what Fitzgerald stands for is the proposition that this Court can announce rules of law which are binding on State and Federal courts, as the Fitzgerald immunity surely is binding in State and Federal courts.
Stephen G. Breyer: Well, what is it in the Constitution that makes the immunity, let's say, of a Federal judge or the immunity of any Federal employee for acts of official duty binding in a State court, where that activity might itself constitute a tort under State law? What is it in the Constitution that binds the State courts so that the State court can't proceed? Is this the supremacy clause? I mean, I--
Walter E. Dellinger, III: Yes. The... to the extent that it's based upon Federal law, it is the supremacy clause. To the extent that it's--
Stephen G. Breyer: --So if there is a separation of powers doctrine that creates a... a... call it a Federal common law-type immunity, then that immunity for judges or anyone else is binding upon the State courts because of the supremacy?
Walter E. Dellinger, III: --That is absolutely court, Justice Scalia, in--
Antonin Scalia: No, but not if it's based on the separation of powers.
Walter E. Dellinger, III: --I believe that the Fitzgerald immunity clearly applies to actions brought in State court. Surely the Court in Fitzgerald did not announce that a doctrine of immunity for presidential actions, in the official capacity--
David H. Souter: But isn't the reason for that that the immunity in a Federal court would be meaningless if it were subject to an end run, and that's how the supremacy clause translates a separation of powers doctrine into a State court immunity; isn't that the way it works?
Walter E. Dellinger, III: --That is exactly correct.
William H. Rehnquist: But a good... a good deal of your Federal official immunity for Federal comes by statute from Congress, not from the Constitution.
Walter E. Dellinger, III: Yes, some of that comes by--
William H. Rehnquist: And that of course isn't... we're not faced with a situation where Congress has passed a law granting this immunity.
Walter E. Dellinger, III: --That is correct, Mr. Chief Justice--
Antonin Scalia: Let me... I don't understand how Nixon v. Fitzgerald requires you to say that it is separation of powers that somehow gets to the State courts. A State... you could not bring suit in the State court to stay a Federal actor, whether it's the President or not. It's simply the supremacy clause that says State courts don't muck around with... with Federal activities.
Walter E. Dellinger, III: --Well, Justice--
Antonin Scalia: You don't need separation of powers to get there.
Walter E. Dellinger, III: --No. You need... what you need is Article II, as informed by the separation of powers.
Antonin Scalia: Right, right.
Walter E. Dellinger, III: Nixon v.--
Antonin Scalia: So that keeps the State courts out. And then you have the doctrine of separation of powers, which keeps the Federal courts out.
Walter E. Dellinger, III: --Yes, that is correct.
Antonin Scalia: Okay. Well, that's quite different from saying we've extended... somehow we make a ruling on separation of powers for the Federal courts and that automatically slops over to the State courts.
Walter E. Dellinger, III: No.
Anthony M. Kennedy: On the other hand, the case such as Toddles case, which says that a State... or a State court... cannot enjoin a Federal official, have to do with a Federal official in the course of his duties.
Walter E. Dellinger, III: That is correct, Justice Kennedy. The... in both instances, however, the public interest in the President's unimpaired performance of his duties must take precedence over a private litigant's interest in redress.
Antonin Scalia: Mr. Dellinger, can I ask you about that?
Walter E. Dellinger, III: Yes.
Antonin Scalia: Your brief and the brief of the Petitioner both make a lot about the fact that the President is... you know, it's a full-time job and he... he's very... and any intrusion upon his time is intruding. I must say, I don't find that terribly persuasive. The fact is that... that that's a better reason why the Chief Justice or any of the Justices of this Court should have the kind of immunity you're talking about, or the Speaker of the House, or a member of Congress, none of whom can delegate any of their responsibilities. The President is the one Federal officer at the highest level who is able to delegate.
Walter E. Dellinger, III: Justice Scalia, the singularity and unitariness of the executive are what makes it distinguishable from every other official, and it's not possible--
Antonin Scalia: But we see Presidents riding horseback, chopping firewood, fishing for stick fish-- [Laughter] --playing golf and so forth and so on. Why can't we leave it to the point where, if and when a court tells a President to be there or he's going to lose his case, and if and when a President has the intestinal fortitude to say, I am absolutely too busy... so that he'll never be seen playing golf for the rest of his administration-- --if and when that happens, we can... we can resolve the problem.
Walter E. Dellinger, III: --Justice Scalia--
Antonin Scalia: But, really, the notion that he doesn't have a minute to spare is... is just not... not credible.
Walter E. Dellinger, III: --Justice Scalia, President Reagan said quite aptly, Presidents don't have vacations; they have a change of scenery. Every party to this litigation and every judge below agrees that a President cannot be subjected to litigation in the same manner as someone who is not at that time serving as President. What... what is at issue is not whether an action against the President has to be treated differently, but how that difference should be. And the approach suggested by the court below of... of sensitive judicial case management would wholly fail both to protect the President and would enmesh the State and Federal courts in a politically charged task, lacking manageable judicial standards.
Anthony M. Kennedy: Perhaps you can help me with this aspect of that argument. And it's been troubling to me. When we talk about privileges and immunities, we're talking about balances of interests, the rights of the litigant, the necessities of the President. Here, it seems to me, that the President, during the course of the stay that this proceeding produces, is free with his staff and his resources to really, to continue to argue his case, to ruin the reputation of the plaintiff, to poison the well any way he can, just as the... as the other parties might try to do against him. But he's in a very dominant position. There's really nothing we have that could stay the President's activity in this regard. That certainly is beyond the control of the Court. So it seems to me that the imbalance here is very substantial. And I know of no compensating balance mechanism to protect the plaintiff.
Walter E. Dellinger, III: Well, I think that certainly political pressures would cut against that. But we have... we have acknowledged that delay could well have adverse consequences for a plaintiff suing any President. But that has never been treated dispositive. There is nothing anomalous about the proposition that individual civil damage remedies are precluded by public policy considerations. Chief Justice Burger noted in Fitzgerald that there are at least 75,000 public officials that have absolute immunity, a different kind of immunity, but one which nonetheless precludes plaintiffs from being able to--
Sandra Day O'Connor: Well, Mr. Dellinger, suppose it's a child custody matter. Sometime in the future, we have some President who doesn't get along with a spouse, and there's a child custody problem. There's no right to go into a State court and get temporary relief, so that the child knows where the child is going to be for the next 8 years or whatever it is?
Walter E. Dellinger, III: --Justice O'Connor, I believe that that would be... that's the most appealing case for an exception I've heard. Now, we're not suggesting... and I have to be concerned about--
Sandra Day O'Connor: Well, so there's no automatic rule that the Court has to dismiss the minute the thing is filed; you acknowledge that?
Walter E. Dellinger, III: --Well--
Sandra Day O'Connor: Or suppose a President in the future owns some part... great parcel of land somewhere and it's bubbling up with poisons. And all the neighbors are upset because of the environmental damage. No temporary injunction possibility?
Walter E. Dellinger, III: --I am not suggesting that there's a balancing test or a case-by-case determination. We're suggesting that there ought to be a rule... and we have to be concerned not just with civil damage actions like this one, but with actions against all future Presidents... a rule... an operative rule that courts should postpone civil litigation until the President's term. But the existence of that does not mean we can assume, arguendo, that an extraordinary case like child custody you could make an exception. Now, as to the President's--
Antonin Scalia: Well, once you assume that, arguendo, you don't have a firm rule, and you begin to lose me.
Walter E. Dellinger, III: --No--
Antonin Scalia: Because I don't like cases... I do not like courts engaging in case-by-case balancing and saying, This intrudes on the presidency too much, this doesn't intrude.
Walter E. Dellinger, III: --This is not a matter--
Antonin Scalia: You give me a clear line, and I might buy it.
Walter E. Dellinger, III: --The fact that you have a rule, and an operative rule, and it tells courts what to do does not mean that you can never make an exception. That's true of prior restraints.
Antonin Scalia: Is that right?
Walter E. Dellinger, III: That's true of prior restraints. The--
Ruth Bader Ginsburg: General Dellinger, there was a list in many of the briefs. And it went: nuisance abatement, mortgage foreclosure, divorce, child custody. And those were presented as categorical exceptions. Are you saying that it would be a case-by-case thing or that there are certain kinds of cases that would be excluded from this temporal immunity?
Walter E. Dellinger, III: --We believe that there should be a rule that any civil litigation against a President should be postponed. Now, the President's attorney need worry only about civil damage actions. And it is hard, I think, given the way our legal culture treats civil damage actions, to make the case for an exception in that instance. But when you consider the demands on the presidency, we think, given the--
Stephen G. Breyer: What are those demands in respect to a deposition, say, kept under seal, of non-White House witnesses? How does proceeding with discovery for non-White House witnesses... even, let's say, kept it under seal so it wasn't in the press, et cetera... how would that interfere with the daily workings of the presidency?
Walter E. Dellinger, III: --I think it could interfere with the workings of the presidency, and therefore would urge that discovery be postponed, except for lost evidence that Mr. Bennett has acknowledged that he would accommodate. Because I think litigation can be all-consuming and all-absorbing. I think there is... one has to have a sense of the extent to which someone who is involved in personal litigation can be totally absorbed by it. Advising on what questions should be asked of witnesses--
William H. Rehnquist: But surely the range of matters-- --Surely that may be true of an individual with an ordinary job, but with all the pressing concerns that the President has, one would think it would be less true of him.
Walter E. Dellinger, III: --Mr. Chief Justice, the... when this country adopted the 25th amendment, it was a recognition by Congress and the courts that the President's office was singular, as Chairman Emmanuel Cellars said when he proposed the amendment to Congress, the Nation cannot permit the office of the President to be vacant even for a moment.
Antonin Scalia: But let's say it is singular. Now, it seems to me you're talking about intrusion of the judiciary upon the executive's time. You also have, sometimes, intrusion by the legislature upon the executive's time. Now, the way we've chosen to handle that with respect in particular to claims of president al privilege... not to testify, not turn over documents, not to give information to Congress... is we haven't adopted an absolute rule that, because it would be so intrusive upon the President, you can't make any such demands. We wait for the case to arise. And if and when the President has the intestinal fortitude to say, as, for instance, Dwight Eisenhower did with respect to the Army McCarthy hearings, I am not going to give any testimony; I am not going to allow any of my people to give testimony. If and when that comes up, I'm willing to allow a total executive privilege at that point. Why can't we adopt the same rule here? If and when the President says, I just don't have the time to come when you subpoena me, I'll give him an absolute immunity in that situation.
Walter E. Dellinger, III: Justice Scalia--
Antonin Scalia: Why isn't that enough to protect the President from all that we're worried about?
Walter E. Dellinger, III: --Because I think that risks both, failing to protect the President and risks undercutting the role of the courts. To put the President to the task with regard to each phase of a lawsuit--
Antonin Scalia: The beautiful thing about it is it takes the courts out of the scene. They don't have to decide, is it too important, is it unimportant, blah, blah, blah, blah, which gets the courts involved.
Walter E. Dellinger, III: --It totally undercuts--
Antonin Scalia: This way it's absolute. All the President has to do is stand up and say, I'm too busy to come to this hearing, and I will not come, and you have no power to enter judgment against me simply because of my refusal.
Walter E. Dellinger, III: --Justice Scalia, that would... the approach that would have litigation go on... and perhaps no President could responsibly agree to attend, which is why putting the President to a task at every step and putting the courts at that task of making a decision about which of the President's duties. The President's work makes it impossible--
Sandra Day O'Connor: But under that rule, the court wouldn't have to make any decision. Under the rule proposed by the question you were answering, the minute that is asserted, the court says, Hands off, I'm out of here.
Walter E. Dellinger, III: --You would put the President to the burden of being concerned with litigation constantly and having to raise at each point a refusal to participate or to cut off his testimony. You would put... you would put a--
Ruth Bader Ginsburg: General Dellinger... General, but you're not just talking about when the President is called to testify; you are talking about all the other people in the litigation--
Walter E. Dellinger, III: --That is correct.
Ruth Bader Ginsburg: --that's what makes it unlike the legislative hearing?
Walter E. Dellinger, III: The... the absorption of the President with the rest of the trial and the hearing places the Article III judiciary in a very difficult position. The petitioners in this case give a list of activities... I'm sorry, the Respondents... in their brief that they think would not have justified delay, including vacation activities where important work may have been done, including a good example of what would happen to the courts is a 4-day train trip they note that a President... this particular President took en route to a political convention. Now, if you debate that example, half the people will say that's clearly nonofficial and shouldn't give way. They're absolutely right; it's not even paid for by the government. Others will say it's an important governmental function for a President to communicate during his reelection campaign.
William H. Rehnquist: Thank you, General Dellinger. Mr. Davis, we'll hear from you.
Gilbert K. Davis: Mr. Chief Justice, and may it please the Court: William Jefferson Clinton, the citizen, who holds the office of the presidency of the United States, advances the novel claim of immunity from the progress of litigation while he is President. This immunity he derives, he says, from the separation of powers doctrine of our Constitution, and he further contends that the judicial branch of Government must suspend the processing of Paula Corbin Jones' lawsuit until he is out of office, potentially for a period of 7 years after the date of her filing of the suit. This novel proposition has three fundamental errors. The first error is to confuse the office of the presidency, which has privileges and immunities which protect its institutional duties, with the person who holds that office who, in his private capacity and personal capacity has no such privileges and immunities and instead has the same rights and responsibilities as all other citizens.
Antonin Scalia: Mr. Davis--
Gilbert K. Davis: Yes, sir.
Antonin Scalia: --what do you do when a State court tells the President, you're going to lose this lawsuit unless you appear for a hearing on June 2, and the President says, you know, Your Honor, I have a NATO meeting I'm supposed to go to, heads of State, and you know, you have a testy district judge or local State court judge... you've encountered some of them... and they say, this is my courtroom and, you know, I expect you here on June 2.
Gilbert K. Davis: Your Honor--
Antonin Scalia: And you say there's no remedy for that.
Gilbert K. Davis: --Justice Scalia... no, I say that there is a remedy for that. First, the bright line test that the Court should seek here, I think, is that you look first to an actual, imminent interference with official duty.
Antonin Scalia: And who judges that, the judge does? The judge says, well, Mr. President, this NATO meeting, I've sort of looked up the... it's not a very important NATO meeting. [Laughter] You could send your Secretary of State. In fact, I think he's smarter than you are anyway. Or the President says, it's top secret. I can't tell you, judge, why I can't be there.
Gilbert K. Davis: Justice Ginsburg... I'm not sure who I should respond to first, but--
Ruth Bader Ginsburg: It's the same question. [Laughter]
Gilbert K. Davis: --Justice Ginsburg, there are ample traditional powers. We don't have to shift burdens of proof or any other special mechanism here. There are traditional powers of the court which must be presumed to exercise those to protect the President from interference with his job, ex parte conferences, and the like. Justice Scalia, your question as to what do you do if a judge does not and is not sensitive to the demands of the presidency and the time required by the occupant of that office to perform the functions, I think there are several potential remedies. I'm not certain that I could exhaust them all, but mandamus, prohibition. Certainly all roads lead to this Court.
Ruth Bader Ginsburg: But what law would govern that? Is it just State law, be nice to Presidents? I--
Gilbert K. Davis: No, I think first the President must make the claim, if he--
Ruth Bader Ginsburg: --And what law would control, Federal or State, when a President says I can't be there because I have to do something that's connected with my office?
Gilbert K. Davis: --I hope I'm not on unsettling ground here, but I would suggest, as Justice O'Connor I think first mentioned, that the Supremacy Clause, the structure... and here is a separation of powers issue perhaps, at least where the Constitution parceled out, structurally, power and gave to the President all executive power. If a State or Federal court, and I'm not certain that it makes any difference whatsoever, were to interfere in such a way or permit an interference--
Antonin Scalia: And who decides that? What we're asking is, who decides? Does this Court decide whether the President is being interfered with too much, or is the simple assertion--
Gilbert K. Davis: --I think the simple assertion--
Antonin Scalia: --The simple assertion by the President, if he's willing to take the political heat and say, I don't have enough time to come to this hearing--
Gilbert K. Davis: --I think--
Antonin Scalia: --would you allow that absolutely to control?
Gilbert K. Davis: --I would allow it to control with this possible caveat. If it happened 10 times in a row, and there was a question of good faith, I think the Court... I don't think the Court can exercise any jurisdiction over his person.
Antonin Scalia: Can't you leave political pressures to take care of that? No President's going to do it 10 times. He's going to look very bad.
Gilbert K. Davis: Well, I would agree.
Stephen G. Breyer: What in your view is an interference? That is, suppose, for example, that the lawyers are deposing non-White House witnesses and it turns out that every statement they made is in the newspaper and the President says, but I have to respond to each of these. They're saying I was in a certain place at a certain time, or I said something to somebody only a month ago. And then somebody else says something about what he didn't say, and then somebody says something about where there's a paper that somebody wrote it down, and then it goes into... we all know how those things work, and suppose the President says, look, I don't have time to go into all of these things. I don't have time to remember every single thing I said to everybody and anything that's tangentially related. It's interfering, right now. Now, what in your view... is that an interference, or is--
Gilbert K. Davis: I think that the rule here, Justice Breyer, is an actual, imminent interference with his job and a claim that he makes.
Stephen G. Breyer: --I've just given you the example. Is that an interference, or he's saying this deposition, all these depositions interfere because I don't have time.
Gilbert K. Davis: Yes, sir.
Stephen G. Breyer: That is an interference?
Gilbert K. Davis: I think that may well be an interference. It's the same kind of interference that you would have that's posed, this torrent of litigation that might occur.
Stephen G. Breyer: Now, he comes and says that, and how in your view should this be decided? I'm just repeating now the question, that I want to be clear about.
Gilbert K. Davis: On the torrent of litigation, or how--
Stephen G. Breyer: No, how... when the... when your side, for example, takes dozens of depositions, and each one turns up what I call peripheral or satellite issues about who said what to whom where, and where the paper is and where it isn't and so forth, and he says, I don't have time to talk to my lawyers about all of these details because there are so many, and they require so much thought, and that's his claim of interference. Now, how in your view is it supposed to work?
Gilbert K. Davis: --Justice Breyer, if he relates that to his official duties so that it is taking his time and his mental processes away from his official duties, then I think that is an interference that would justify him not--
Sandra Day O'Connor: Well, so you don't defend the judgment of the court of appeals below. Did you file a cross-petition for certiorari then on some ground? The court below permitted, as I understand it, some discovery--
Gilbert K. Davis: --Oh, no. No, sir--
Sandra Day O'Connor: --to go forward, but you take the position that that discovery may not go forward if the President asserts, gee, this is taking my time. You're deposing witness X out there in the State of Arkansas but it's consuming my time to look at it. Therefore, you're off the hook. Is that your position?
Gilbert K. Davis: --No. No, I am defending--
Sandra Day O'Connor: But that is precisely what you just told Justice Breyer is the rule.
Gilbert K. Davis: --No, Your Honor.
Sandra Day O'Connor: What is the thing you're asserting? I just am totally confused now.
Gilbert K. Davis: All right. Well, let me see if I can clear the confusion. What I am suggesting, and it's in the context of the depositions that Justice Breyer raised this--
Sandra Day O'Connor: Depositions of third parties out of State?
Gilbert K. Davis: --It's hard to conceive that they would be--
Sandra Day O'Connor: But if the President comes in and says, look, I want to keep track of this stuff, I need to meet with my lawyer, and I want to see what's going on here, it's interfering with my duties, what is the lower court to do?
Gilbert K. Davis: --Well, I think the lower court has its function and its duty to decide whether that is a good faith claim.
William H. Rehnquist: That goes beyond my question, you understand. Let him answer Justice O'Connor's question. Go ahead.
Gilbert K. Davis: And if it is not, then you may have a conflict between the person of the President and a judge. He would respond. He would just go to the--
Sandra Day O'Connor: So the trial court judge at the State court level is to determine whether the offer... the complaint made by the President's lawyer is made in good faith or not?
Gilbert K. Davis: --I think he must make the claim of actual interference with his duties, that as another example, the torrent of litigation has come... is so much, that I am only responding now to civil complaints.
Anthony M. Kennedy: But don't we know that that's inevitable in a suit like this? This argument here today is taking an hour. All the counsel and all participants in the argument have thought about it for at least the weekend if not a week. [Laughter] There's an anxiety component, there's an intellectual commitment--
Gilbert K. Davis: Yes, sir.
Anthony M. Kennedy: --there's an emotional commitment--
Gilbert K. Davis: Yes, sir.
Anthony M. Kennedy: --that's far more extensive than some time chart would indicate.
Gilbert K. Davis: I don't--
Anthony M. Kennedy: And I think that's part of what the President is saying, is--
Gilbert K. Davis: --Well--
Anthony M. Kennedy: --if he's going to defend this lawsuit it will absorb substantial energies.
Gilbert K. Davis: --I don't believe, Justice Kennedy, that the Constitution protects him in his personal capacity.
Sandra Day O'Connor: Well, what if the President's attorney came before the Court at the cert stage and asserted in the petition for certiorari this is causing the President to spend too much time on this. You, Supreme Court, lay off. It's bothering my duties. I'm very interested in this issue, and it's taking my time. What is the Supreme Court of the United States to do?
Gilbert K. Davis: I don't think the Supreme Court of the United States is a fact-finding body on that subject.
Stephen G. Breyer: But the only fact is--
Sandra Day O'Connor: --But we have an issue of law that is consuming a great deal of time, effort, and anxiety.
Gilbert K. Davis: Yes, but that issue again is a matter to be addressed to a trial judge, who is--
David H. Souter: But I thought the only issue was good faith. I thought you said a moment ago that if in fact the particular objection to the particular deposition and what-not was made in good faith, that it would be appropriate for the court to honor it, period.
Gilbert K. Davis: --Well, I think the court... I think... perhaps I should also suggest that a court suspicious of the good faith of that assertion--
David H. Souter: No, let's--
Gilbert K. Davis: --is entitled to require a showing, just as in the--
David H. Souter: --But all of this showing, all of this inquiry goes to the good faith of the request.
Gilbert K. Davis: --Goes to the interference, whether--
David H. Souter: Goes to... I thought you were saying it goes to the good faith of the claim of interference, and that is a different thing, I think, that you are allowing thereby from an inquiry into the degree of interference and whether the interference is serious enough to warrant the stay or what-not. I think those are two different inquiries, and I understood you to be saying back when you were responding to Justice Breyer that it was the good faith inquiry that would be dispositive.
Gilbert K. Davis: --I think as a practical matter, and I'm not suggesting the good faith as a rule of law, as a practical matter in--
Ruth Bader Ginsburg: Probably try to take it out of the immunity context with respect to lesser officers... you know, the Fitzgerald case has been featured in the briefs and in this argument, but Harlow came down the same day, and in that case this Court said that discovery can be peculiarly disruptive of effective government. That was in the case of a lesser officer. And so for that reason the Court said, although immunity is only qualified, we're going to decide that question at the top of the list before any discovery is allowed.
Gilbert K. Davis: --Justice Ginsburg, I believe that the immunity question, if it exists, if the concept that has been suggested to this Court of temporal immunity, if it exists, bars proceedings whether they're pretrial or trial. If that arises under the separation of powers, then it bars it all. If it does not, it does not bar either the pretrial or the trial subject to an actual interference.
David H. Souter: And I asked-- --I thought you were arguing that... or conceding that if there was in fact a good faith assertion of the privilege in a given instance, that it would be appropriate to honor it. Is that... I am wrong?
Gilbert K. Davis: I don't think it's a privilege. I think what he would be saying is, a procedure has happened here. I can't--
David H. Souter: Whatever you call it.
Gilbert K. Davis: --Well, I think the best way to call this is a trial. Let's talk about a trial. He's anticipating 7 days worth of trial, and I can't be in court for 7 days, and--
Antonin Scalia: No, no. This is third party depositions we were talking about.
John Paul Stevens: May I ask a question in that regard about third party depositions, and we're concerned about their impact on the office of the President and so forth. Would it be permissible for the trial judge in trying to control the litigation and recognize the special problems of the President to narrow discovery to matters that relate to the particular incident involved in the trial and say, no, you can't ask about the history for the last 10 years, or 45 other police officers and so forth. Would that be a permissible use of the trial judge's discretion?
Gilbert K. Davis: --I think the trial judge always has the opportunity and the duty to balance the interests--
John Paul Stevens: So it would be permissible to him to narrow discovery and the scope of inquiry--
William H. Rehnquist: --Mr. Davis, I don't think you're answering some of the questions quite as frankly as we might hope you would. To say that the trial judge could consider it isn't to say whether he's bound by it.
Gilbert K. Davis: --I don't think he is bound--
William H. Rehnquist: And there is a difference between a President's claim simply saying, I can't come now. Is that conclusive on the court? It seems to me... or does the court have an obligation, or at least is it permissible to weigh the court's own evaluation of the President's claim? I think I would like and I think my colleagues would like your answers to those questions.
Gilbert K. Davis: --I do believe, Chief Justice, that a court has, if it is suspicious of a President's assertion of a claim, has a right to inquire into the bona fides of that claim, and if the court found in its belief that the President did not make that claim and that there... properly that there was not an interference with his duties, I think the court would go... could... can't take any exercise of jurisdiction over his person, but could go forward with the other kinds of remedies that it might have.
Sandra Day O'Connor: Is that the holding of the Eighth Circuit that we're reviewing?
Gilbert K. Davis: The Eighth Circuit never considered, I don't think, the minutiae--
Sandra Day O'Connor: It sounds different to me than what we read in the Sixth--
Gilbert K. Davis: --The Eighth Circuit said--
Sandra Day O'Connor: --in the Eighth Circuit opinion.
Gilbert K. Davis: --No, the Eighth Circuit said that, sensitive to proper judicial case management and sensitive to the interests of the parties, including the President, this case should proceed, and I--
Antonin Scalia: Mr. Davis--
Gilbert K. Davis: --responding as a sensitivity to those questions.
Antonin Scalia: --Mr. Davis, I am unlikely to favor a disposition that allows any judge, Federal or State, to sit in judgment of the President's assertion of whether his executive duties are too important or not. What about an alternative to your proposal that would draw a distinction between the person of the President being hauled before a court and depositions of other people, and say the latter, and the worry about the trial, and all of that, is just like worry about his personal health or his financial affairs, or marital problems at home, or whatever. It's just something you've got to live with, even when you're President. However, to be hauled personally before a judge is something else, and so give the President absolute immunity. If he makes the claim, I'm too busy to come, you cannot enter judgment against him simply because he refuses to appear, but the rest of the trial can proceed. Would that be acceptable to you?
Gilbert K. Davis: I would not find it acceptable because I think the presumption is that this case, which does not have a risk to it in the likely event that it goes forward... if it were to go forward does not have a risk of interference with the functions of the presidency, and it's a case of a--
Antonin Scalia: Well, what if the President says so? I'm not saying the rest of the trial. I'm just saying, when he's subpoenaed to testify he says, I am too busy. I am President of the United States.
Gilbert K. Davis: --Well, Justice Scalia--
Antonin Scalia: And he has to make that claim.
Gilbert K. Davis: --he has given depositions, and he has arranged his calendar, and the court would... under the new Federal rules, as I understand it, would have a conference with him, what protections do you need, and would... could enter an order to that, and he gives available dates. As a matter of fact, in most of these circumstances my brother Mr. Bennett I'm sure would be accommodating to arrange with us, without the involvement of the court at all, the time and place and date, and the availability of the President, and if he said, hey, I've got something else to do, I'm sure counsel would do it. If they didn't do it, then of course you go to the court, but to say--
Antonin Scalia: But you still insist that the court pass judgment on... if the President can't come to some compromise, you think the court will sit in judgment on whether, indeed, he's too busy?
Gilbert K. Davis: --Well, his option is just not to obey, because I have a--
Antonin Scalia: And suffer judgment.
Gilbert K. Davis: --constitutional and statutory function to perform.
Antonin Scalia: And suffer judgment.
Gilbert K. Davis: He could suffer judgment. There's the appellate process for that.
Anthony M. Kennedy: When you say that the President can in good faith make an assertion of privilege that would be honored if it's in good faith, it seems to me that you give away most of your case. You leave two things for court inquiry, number 1, the existence of good faith, and number 2 whether or not it's a risk to the presidency. It seems to me that both of those inquiries are so very, very intrusive that it argues strongly for the absolute privilege that petitioners are suggesting.
Gilbert K. Davis: Well, the question came to me initially and my bright line rule was not the good faith rule, it was the actual imminent risk to the President performing his duties, and an assertion of the claim, and we got to the point of the assertion of the claim, and I merely suggested that the... that if the President was not in good faith 10 times in a row, that the court might make an inquiry into that. I did not suggest to the Court that the... necessarily that that was a... the rule of law that we would necessarily seek. I think the President would act in good faith. If he did not act in it, the court may have the right to inquire. I don't think that is before us. What is before us is a private action. The President has a private capacity. He should be... he should go forward with the case, and if--
Ruth Bader Ginsburg: Mr. Davis, what is at risk for you taking into account two things. Mr. Bennett said that it would be appropriate to take depositions to perpetuate testimony if there's a danger that the testimony won't be available later and, should you prevail, you get interest on any damage award, so what is at stake in a postponement?
Gilbert K. Davis: --Well, what is at stake, and this is... these interests I think are substantial to the plaintiff. She can lose her cause of action if either she or the President dies. It is extinguished, as the Eighth Circuit concurring opinion points out. She has her reputation. You talk about how important this case is. It's a civil rights case partially and State's claims, but reputation is what we take to our grave probably more than anything else, and while she's alive that reputation is sullied. The implicit... well, the implication of the article was that she was a compliant female. If that is the case, we can imagine that she goes for a job and an employers says, I'm not so sure whether you made a valid claim here or not. I don't want to be the next employer that you charge.
Ruth Bader Ginsburg: She hasn't alleged anything like that, has she?
Gilbert K. Davis: No, no, but you asked me what interests are involved in the delay. In addition to that, obviously, the course of human experience, we don't know when witnesses will die. We certainly can't say, well, there's an emergency because somebody's going to die tomorrow who's not ill. That is a common experience, and that's why justice delayed has often--
William H. Rehnquist: Well, witnesses' memories also fade, do they not?
Gilbert K. Davis: --They fade, and they become incapacitated. The documents get lost or mislaid. So her case could be utterly destroyed, and she could--
Ruth Bader Ginsburg: I thought as far as witnesses' memories were concerned, I thought that Mr. Bennett had conceded that you could have something like Rule 27 of the Federal Rules of Civil Procedure, depositions to perpetuate testimony?
Gilbert K. Davis: --But discovery depositions, Your Honor?
Ruth Bader Ginsburg: Yes.
Gilbert K. Davis: Where leads are developed? I'm not certain that Mr. Bennett would permit that.
Ruth Bader Ginsburg: No. No, responding to the dim memory problem, that dim memory is a problem. Then you can get the current memory.
Gilbert K. Davis: Mr. Bennett I found to be very accommodating, but this Court is going to be enunciating a constitutional doctrine.
Ruth Bader Ginsburg: Well, I'm not so sure about that, because even in the Fitzgerald case Justice Powell had a footnote where he suggested that Congress might pass a law authorizing such a claim against the President. Now, if Congress could pass a law, then it can't be a constitutional matter, can it?
Gilbert K. Davis: That is the remedy that the President... that the President could seek if he fears this interference. I think if there's--
Ruth Bader Ginsburg: No, no. In the Fitzgerald case Justice Powell said that he was leaving over the... leaving open the possibility that Congress could do away with the absolute immunity--
Gilbert K. Davis: --Oh, I think--
Ruth Bader Ginsburg: --by law.
Gilbert K. Davis: --Yes.
Ruth Bader Ginsburg: By a mere law.
Gilbert K. Davis: I... the justice... Chief Justice Burger was very skeptical of that. There was a suggestion in it, in dicta, in Justice Powell's opinion. My own view is that if there is an immunity that arises under the Constitution and the separation of powers, that Congress by some affirmative act that says a President now doesn't have that protection, I would be very skeptical whether Congress could do it.
Antonin Scalia: And of course Congress can apparently make constitutional by statute what is otherwise unconstitutional under the Commerce Clause, can't it? [Laughter]
Gilbert K. Davis: Yes, sir, but that--
Antonin Scalia: So even if that were true, it wouldn't be unheard of in our strange jurisprudence.
Gilbert K. Davis: --Justice Scalia, I'm not sure I want to be a part of that.
Antonin Scalia: No, but it's true. [Laughter] The fact is true though. Is it not true that Congress by statute can-- --Well, Congress gives power-- --cause something which otherwise would be held by this Court to violate the Commerce Clause not to violate it. The Constitution gives Congress the power to regulate commerce. It doesn't give Congress the power to regulate immunities. I suppose there's a distinction.
Gilbert K. Davis: That would be mine. [Laughter] May it please the Court, there are other--
Ruth Bader Ginsburg: Well, it would if there's a Federal... if the immunity's as a matter of Federal common law and not Federal constitutional law.
Gilbert K. Davis: --Yes, but it is not here. We would... and the Fitzgerald opinion did talk about presidential immunities and the sources of them, and there were four sources. The presidency was a recent, much more recent development than the development of the common law, and so look for any immunity that the President has in the Constitution itself, which deals with official power, and that's purely our point here. Unless there is an immunity that arises constitutionally, then there should be no bar to the progress of this litigation with the courts sensitive to the burdens of the presidency and should be trusted to do so. That's another, I think fundamental problem with our opponents, is that they do not have a presumption of trust that the court will deal with these matters--
John Paul Stevens: Well, it's often true, and litigants always don't trust one another completely. May I ask you the same question I asked your opponent. How long do you think it will take to try this case?
Gilbert K. Davis: --This is a very, relatively simple, as far as fact pattern case.
John Paul Stevens: I'm not asking you to describe the case.
Gilbert K. Davis: I--
John Paul Stevens: I'm asking you to tell me how long you think it will take to try it.
Gilbert K. Davis: --Depending on stipulations, Justice Stevens, I would say 4 or 5 days perhaps, but that's just a guess, and it may... and we don't know if the case will be narrowed by--
John Paul Stevens: Why would it take 4 or 5 days?
Gilbert K. Davis: --Well, I'm thinking of what some jurisdictions do. In Virginia, in Federal or State court it would take probably... it would take a half-an-hour in the Eastern District, but-- [Laughter] But I don't think it will take very long, and there's a point to be made about that also. With today's technology, with live feeds or transcripts and continuances from day-to-day, or whenever the President feels that he can--
John Paul Stevens: One of the major concerns, of course, is the extent to which you plan to go into collateral matters.
Gilbert K. Davis: --I can't, and I wouldn't bind, because I'm not certain whether they are admissible. I'm not certain what they... if they would tend to show a fact that we need to prove I think I would be duty bound as counsel to pursue that.
Anthony M. Kennedy: Suppose, because there are other parties involved, that it were 10 days of trial, 2 working weeks, and... pick a number... 15 depositions. Do you think that would be a substantial investment of the President's time?
Gilbert K. Davis: It could very well be. It could very well be, and--
Anthony M. Kennedy: And if it then were in that degree, you think that he'd be entitled to an order deferring the litigation?
Gilbert K. Davis: --If there was no way, at that time... this is ab initio, but at that time, if there was no other way to accommodate his needs, the presidency's needs for him to perform that job, then a continuance might very well be appropriate.
Anthony M. Kennedy: That's something of a perverse incentive, then, because then he has the incentive to ask for a long trial.
Gilbert K. Davis: He may indeed--
David H. Souter: Mr. Davis--
Gilbert K. Davis: --if he wants to avoid a trial.
David H. Souter: --Mr. Davis, if we can trust the court to make that judgment, and if we can trust the court to make all the specific judgments on an instance-by-instance basis which you think is the appropriate way, why can't we also trust the court to make a judgment up front that there are going to be so many specific instances, and the so many specific instances are going to be so costly to the President that the only practical thing is to make a blanket judgment now based upon its good judgment? If we can trust the court to make the first two kinds of good judgments, why can't we trust a court to make that third kind?
Gilbert K. Davis: In an appropriate circumstance, and you're getting to the question of a stay by the district judge as a discretionary matter rather than as a--
David H. Souter: Well, they're all discretionary.
Gilbert K. Davis: --Well, I think she did this--
David H. Souter: I mean, it's an exercise of the court's discretion in each instance. If we can trust them in the first two examples, which you concede, why not in the third, assuming there's an evidentiary basis for it?
Gilbert K. Davis: --Well, the court needs to have a factual basis on which to exercise discretion.
David H. Souter: Okay, and let's assume that the President's lawyers come in and they provide one.
Gilbert K. Davis: If they do provide a factual basis that justifies a continuance--
David H. Souter: Okay.
Gilbert K. Davis: --then certainly the court has authority to do it.
David H. Souter: So the only thing--
Gilbert K. Davis: That's a matter of discretion.
David H. Souter: --The only thing we're really arguing about, then, is whether there ought to be a blanket rule that can be invoked simply by saying, I want this deferral for 4 years.
Gilbert K. Davis: Exactly.
David H. Souter: As distinct from a rule in which the President's lawyers are going to come in and say, these are the practical stakes involved, and they therefore justify a 4-year continuance. That's all we're really arguing about.
Gilbert K. Davis: That's all we're arguing about, yes, sir. Let me just conclude by saying this, that what the President is seeking would require a number of changes. They suggest burden of... changes as to compelling cases, that he doesn't need this, that the burden be on the plaintiff, and to delay it is a situation that would be highly unusual in the normal course, and we don't need it. The power of the court to deal with this is ample. If it proves not to be ample, as in Justice Souter's example--
William H. Rehnquist: Thank you, Mr. Davis. The case is submitted.