Defending the President

Reason, August-Sept, 1994 by Michael McMenamin

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

IT'S A DIRTY JOB, BUT SOMEbody's got to do it. That's why more laboratories are using lawyers instead of white rats in their experiments: There are more of them; you don't get as attached to them; and there are some things rats won't do. So let's get on with mapping out a legal strategy--and the tactics to go with it--for Bill Clinton to beat the sexual harassment lawsuit filed against him by Paula Jones.

After securing an appropriately large retainer, we staff by assuming that the gist of Jones's complaint is true--that Clinton used an Arkansas state trooper to solicit her to meet Clinton in his hotel room; that once she was in his room, Clinton attempted to kiss her neck and put his hand on her thigh underneath her culottes; that she then sat on a sofa and was joined by Clinton, who dropped his trousers and underwear as he sat down, thereby exposing "distinguishing characteristics in Clinton's genital area that were obvious" and asked her to perform oral sex; that she refused and left the room; and that, on the same day, she told three other women about the incident.

Why assume this? Shouldn't our client deny everything? Protest his innocence? Question the motives and credibility of his accuser? Of course he should. And his lawyer has done that for him, in a press conference the day the suit was filed.

But now we're behind closed doors, and we're talking strategy, not public relations. And our strategy is simple. It's to win. At the earliest possible time. And before the plaintiff has much opportunity to take sworn testimony from potentially embarrassing witnesses like state troopers, Gennifer Flowers, and other Clinton mistresses. So we need to take a page out of the legal playbook that helps the news media win 90 percent of all libel cases before trial on issues other than truth.

Truth is the last line of defense for the media, and so it should be for Clinton. As long as we win, public relations can take care of the rest. Why avoid the issue of truth? Because it's her word against his, and only a jury can decide who's telling the truth. If this case goes to a jury, we will have let our client down no matter what the jury decides. And they may well decide she's telling the truth. After all, she never came forward until after The American Spectator had branded her as one of Bill's bimbos, and all she wanted Clinton to do was confirm she had said no. But to avoid going to a jury and still win, we must concede, for the sake of argument, that Jones is telling the truth and persuade the judge that we should win anyway as a matter of law.

So much for strategy. Let's move on to the legal issues we're going to use to get our client off.

Legal issues come in two flavors--substantive and procedural. Both are important, but the substantive wins more ball games and the procedural can be boring for a lay person, so let's move right to the substance--sexual harassment, which Jones has labeled "intentional infliction of emotional distress" because she had only six months to file a federal civil-rights claim and didn't. Jones claims that the hotel oral-sex incident was one instance and the other was a job transfer and failure to receive merit pay increases in retaliation for having turned Clinton down.

The hotel oral-sex incident falls under what employment lawyers call the "hostile environment" category of sexual harassment. It is by far the most common complaint and the most misunderstood by the public. The retaliatory job transfer is called quid pro quo sexual harassment, which is Latin for "tit for tat," but you can't say that in court.

LET'S PAUSE BRIEFLY TO CONSIDER THE job transfer and merit pay claim before moving on to what you really want to know--how we're going to get Clinton off without going to trial. Most of what we will need should be found in Jones's personnel file with the Arkansas state government. If it contains a legitimate, non-discriminatory reason for her transfer, we are halfway home. Then all we need to do is find the state employee who made the decision to transfer her and the one who told her about the transfer and have them corroborate what's in the file and testify that no one from the governor' s office ever talked to them about Jones.

As for the pay claim, there already have been news reports that Jones received at least one merit increase and three cost-of-living increases in less than two years. If we can prove all this, her quid pro quo claim is in deep trouble. She's got to cast serious doubt on our story, either by producing a witness who overheard or saw something from the governor's office about Jones before the transfer or by showing that other employees in jobs just like hers with work records just like hers were not transferred or got better pay increases. If she does, then we may well be facing a jury trial. If she doesn't, then her job transfer and merit pay claims are history, because the judge should throw them out.