                             ___________

                             No. 95-1050
                             No. 95-1167
                             ___________


Paula Corbin Jones,                  *
                                     *
     Appellee - Cross-Appellant,     *
                                     *
     v.                              *
                                     *
William Jefferson Clinton,           *
                                     *
     Appellant - Cross-Appellee.     *
                                     *
Danny Ferguson,                      *
                                     *
     Defendant.                      *
__________________________________
                                     *     Appeals from the United
United States of America; Akhil      *     States District Court
Reed Amar, Southmayd Professor of    *     for the Eastern District
Law Yale Law School; Susan Low       *     of Arkansas.
Bloch, Professor of Law,             *
Georgetown Law School; Harold H.     *
Bruff, Donald Phillip Rothschild     *
Research Professor, George           *
Washington University National Law   *
Center; Susan Estrich, Robert        *
Kingsley Professor of Law and        *
Political Science, University of     *
Southern California Law Center;      *
Richard H. Fallon, Jr., Professor    *
of Law, Harvard Law School;          *
Daniel A. Farber, Henry J.           *
Fletcher Professor & Associate       *
Dean, University of Minnesota Law    *
School; Philip P. Frickey, Faegre    *
& Benson Professor, University of    *
Minnesota Law School; Paul D.        *
Gewirtz, Potter Stewart Professor    *
of Constitutional Law, Yale Law      *
School; Gerald Gunther, William      *
Nelson Cromwell Professor,           *
Stanford Law School; John C.         *
Jeffries, Jr., Emerson G. Spies      *
Professor and Horace W. Goldsmith    *
Research Professor and Academic      *
Associate Dean, University of      *
Virginia School of Law; Sanford    *
Levinson, W. St. John Garwood &    *
W. St. John Garwood Jr. Regents    *
Chair in Law, University of Texas *
School of Law; Burke Marshall,     *
Nicholas deB. Katzenbach Professor *
Emeritus, Yale Law School; Judith *
Resnik, Orrin B. Evans Professor, *
University of Southern California *
Law Center; Suzanna Sherry,        *
Earl R. Larson Professor,          *
University of Minnesota Law        *
School; Steven H. Shiffrin,        *
Professor of Law, Cornell Law      *
School; Kathleen M. Sullivan,      *
Professor of Law, Stanford Law     *
School; Laurence H. Tribe,         *
Ralph S. Tyler, Jr. Professor of   *
Constitutional Law, Harvard Law    *
School; The American Civil         *
Liberties Union Foundation;        *
Stephen B. Burbank, Robert G.      *
Fuller, Jr. Professor of Law,      *
University of Pennsylvania Law     *
School; William Cohen, C. Wendell *
and Edith M. Carlsmith Professor   *
of Law, Stanford University Law    *
School; Larry Kramer, Professor of *
Law, New York University Law       *
School; Deborah J. Merritt,        *
Professor of Law and Women's       *
Studies, University of Illinois    *
College of Law; Geoffrey P. Miller,*
Kirkland & Ellis Professor of Law, *
The University of Chicago Law      *
School; Robert F. Nagel, Ira       *
Rothgerber Professor of            *
Constitutional Law, University of *
Colorado Law School; Richard       *
Parker, Professor of Law, Harvard *
Law School; L.A. Scot Powe, Jr.,   *
Anne Green Regent Professor of Law,*
University of Texas Law School;    *
Stephen B. Presser, Raoul Berger   *
Professor of Legal History,        *
Northwestern University School of *
Law; Ronald D. Rotunda, Albert E. *
Jenner, Jr. Professor of Law,      *
University of Illinois College of *
Law; William Van Alstyne,          *
William R. and Thomas C. Perkins   *

                               -2-
Professor of Law, Duke University     *
School of Law,                        *
                                      *
     Amicus Curiae.                   *

                           ___________

                  Submitted:   September 14, 1995

                      Filed: January 9, 1996
                           ___________

Before BOWMAN, ROSS, and BEAM, Circuit Judges.

                           ___________

BOWMAN, Circuit Judge.


     We have before us in this appeal the novel question whether
the person currently serving as President of the United States is
entitled to immunity from civil liability for his unofficial
acts, i.e., for acts committed by him in his personal capacity
rather than in his capacity as President. William Jefferson
Clinton, who here is sued personally, and not as President,
appeals from the District Court's decision staying trial
proceedings, for the duration of his presidency, on claims
brought against him by Paula Corbin Jones. He argues that the
court instead should have dismissed Mrs. Jones's suit without
prejudice to the refiling of her suit when he no longer is
President. Mr. Clinton also challenges the District Court's
decision to allow discovery to proceed in the case during the
stay of the trial. Mrs. Jones cross-appeals, seeking to have the
stays entered by the District Court lifted, so that she might




                                -3-
proceed to trial on her claims.1 We affirm in part and reverse
in part, and remand to the District Court.2


     On May 6, 1994, Mrs. Jones filed suit in the District Court
against Mr. Clinton and Danny Ferguson, an Arkansas State Trooper
who was assigned to Mr. Clinton's security detail during his
tenure as governor of Arkansas, for actions alleged to have
occurred beginning with an incident in a Little Rock, Arkansas,
hotel suite on May 8, 1991, when Mr. Clinton was governor and
Mrs. Jones was a state employee. Pursuant to 42 U.S.C. § 1983
(1988), Mrs. Jones alleges that Mr. Clinton, under color of state
law, violated her constitutional rights to equal protection and
due process by sexually harassing and assaulting her. She
further alleges that Mr. Clinton and Trooper Ferguson conspired
to violate those rights, a claim she brings under 42 U.S.C.
§ 1985 (1988). Her complaint also includes two supplemental
state law claims, one against Mr. Clinton for intentional
infliction of emotional distress and the other against both Mr.
Clinton and Trooper Ferguson for defamation.


     Mr. Clinton, asserting a claim of immunity from civil suit,
filed a motion to dismiss the complaint without prejudice to its
refiling when he is no longer President or, in the alternative,


     1
      In addition to staying the trial on Mrs. Jones's claims
against Mr. Clinton, the District Court also stayed trial against
Mr. Clinton's co-defendant in the suit, Arkansas State Trooper
Danny Ferguson.
     2
      In addition to the briefs of the parties, amicus briefs
have been filed in support of Mr. Clinton by the United States
and by a group of law professors including Professors Amar,
Bloch, Bruff, Estrich, Fallon, Jr., Farber, Frickey, Gewirtz,
Gunther, Jeffries, Jr., Levinson, Marshall, Resnik, Sherry,
Shiffrin, Sullivan, and Tribe; and in support of Mrs. Jones by
The American Civil Liberties Union Foundation and by a group of
law professors including Professors Burbank, Cohen, Kramer,
Merritt, Miller, Nagel, Parker, Powe, Jr., Presser, Rotunda, and
Van Alstyne.

                               -4-
for a stay of the proceedings for so long as he is President. On
December 28, 1994, the District Court, rejecting the application
of absolute immunity, denied Mr. Clinton's motion to dismiss the
complaint. The court did find, however, that for separation of
powers reasons Mr. Clinton was entitled to a "temporary or
limited immunity from trial,"3 and thus granted his request to
stay the trial for the duration of Mr. Clinton's service as
President. Jones v. Clinton, 869 F. Supp. 690, 699 (E.D. Ark.
1994). Concluding that the claims against Trooper Ferguson are
factually and legally intertwined with the claims against Mr.
Clinton, the court also stayed the trial against Trooper Ferguson
for as long as Mr. Clinton is President, but permitted discovery
on Mrs. Jones's claims against both Mr. Clinton and Trooper
Ferguson to go forward. On appeal, Mr. Clinton seeks reversal of
the District Court's rejection of his motion to dismiss the
complaint on the ground of presidential immunity and asks us to
order that court to dismiss Mrs. Jones's action in its entirety,
without prejudice. In the alternative, he asks this Court to
reverse the decision denying his motion to stay discovery. Mrs.
Jones cross-appeals the District Court's decision to stay the
trial of her claims against both Mr. Clinton and Trooper
Ferguson.4


     3
      The District Court also justified the stay on the basis of
its authority under Rule 40 of the Federal Rules of Civil
Procedure and "the equity powers of the Court." Jones v.
Clinton, 869 F. Supp. 690, 699 (E.D. Ark. 1994).
     4
      Mr. Clinton argues that we do not have jurisdiction to hear
Mrs. Jones's cross-appeal from the orders staying the trial, as
they are non-final, interlocutory orders. We conclude, however,
that Mrs. Jones's cross-appeal is "inextricably intertwined" with
Mr. Clinton's appeal, which is before us under the immunity
exception to the general rule that only final judgments are
appealable. See Mitchell v. Forsyth, 472 U.S. 511, 525 (1985).
Thus the orders staying trial are presently appealable under our
"pendent appellate jurisdiction." See Kincade v. City of Blue
Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995) (analyzing Swint
v. Chambers County Commission, 115 S. Ct. 1203 (1995), and
concluding that pendent appellate jurisdiction remains a viable

                               -5-
     Mr. Clinton argues that this suit should be dismissed solely
because of his status as President. The immunity he seeks would
protect him for as long as he is President, but would expire when
his presidency has been completed. The question before us, then,
is whether the President is entitled to immunity, for as long as
he is President, from civil suits alleging actionable behavior by
him in his private capacity rather than in his official capacity
as President. We hold that he is not.


     We start with the truism that Article II of the
Constitution, which vests the executive power of the federal
government in the President, did not create a monarchy. The
President is cloaked with none of the attributes of sovereign
immunity. To the contrary, the President, like all other
government officials, is subject to the same laws that apply to
all other members of our society. As the Supreme Court has
observed, "Our system of jurisprudence rests on the assumption
that all individuals, whatever their position in government, are
subject to federal law . . . ." Butz v. Economou, 438 U.S. 478,
506 (1978). Nevertheless, mindful that for the sake of the
nation's general good the Constitution empowers officials to act
within the scope of their official responsibilities, the Supreme
Court has recognized "that there are some officials whose special
functions require a full exemption from liability" for their
performance of official acts. Id. at 508. The list of those
entitled to absolute immunity from civil liability includes the
President of the United States for his official acts, Nixon v.


concept in the Eighth Circuit). All issues raised in the appeal
and the cross-appeal (with the exception of those portions of the
orders concerning the defamation claim against Mr. Clinton, see
infra note 7)--the challenges to the non-dismissal of the suit,
to the stays of trial, and to the allowance of discovery--are
resolved by answering one question: is a sitting President
entitled to immunity, for the duration of his presidency, from
civil suit for his unofficial acts? It is difficult to imagine
issues more "intertwined" than these, where answering one
question of law resolves them all.

                               -6-
Fitzgerald, 457 U.S. 731, 756 (1982); members of Congress for
their legislative acts, regardless of motive, under the Speech
and Debate Clause, U.S. Const. art. I, § 6, Dombrowski v.
Eastland, 387 U.S. 82, 84-85 (1967) (per curiam); Tenney v.
Brandhove, 341 U.S. 367, 372, 377 (1951); judges in courts of
general jurisdiction for judicial acts, Stump v. Sparkman, 435
U.S. 349, 359-60 (1978); Pierson v. Ray, 386 U.S. 547, 554
(1967); prosecutors for prosecutorial functions, Imbler v.
Pachtman, 424 U.S. 409, 427 (1976); and certain executive
officials performing certain judicial and prosecutorial functions
in their official capacities, Butz, 438 U.S. at 514-15. In
addition, witnesses are entitled to absolute immunity from civil
suit for testimony given in judicial proceedings, Briscoe v.
LaHue, 460 U.S. 325, 334 (1983), and even government officials
whose special functions do not require a full exemption from
liability may have a more limited qualified immunity for their
official acts, e.g., Procunier v. Navarette, 434 U.S. 555, 561
(1978) (prison officials); Wood v. Strickland, 420 U.S. 308, 321-
22 (1975) (school officials); Scheuer v. Rhodes, 416 U.S. 232,
247 (1974) (officers of the Executive Branch); Pierson, 386 U.S.
at 557 (police officers making an arrest). We are unaware,
however, of any case in which any public official ever has been
granted any immunity from suit for his unofficial acts, and
neither the Supreme Court nor any other court, the District Court
excepted, appears to have addressed the precise issue before us
today: whether the President is entitled to immunity for the
duration of his presidency when sued for his unofficial actions.


     The immunity that has been found for official acts is not
the product of a prudential doctrine created by the courts and is
not to be granted as a matter of judicial largesse. Cf. Imbler,
424 U.S. at 421 ("[O]ur earlier decisions on § 1983 immunities
were not products of judicial fiat that officials in different
branches of government are differently amenable to suit under
§ 1983."). Rather, the question whether to grant immunity to a

                               -7-
government official is "guided by the Constitution, federal
statutes, and history" and is informed by public policy.
Fitzgerald, 457 U.S. at 747. "In the case of the President the
inquiries into history and policy . . . tend to converge.
Because the Presidency did not exist through most of the
development of common law, any historical analysis must draw its
evidence primarily from our constitutional heritage and
structure." Id. at 748. Thus the historical "inquiry involves
policies and principles that may be considered implicit in the
nature of the President's office in a system structured to
achieve effective government under a constitutionally mandated
separation of powers." Id.


      There is no suggestion in this case that federal
legislation is the source of either the immunity Mr. Clinton
seeks or an abrogation of a previously declared presidential
immunity. Cf. id. at 748 n.27 (noting that the causes of action
in the case were "implied" in the Constitution and federal law,
and therefore declining to "address directly the immunity
question as it would arise if Congress expressly had created a
damages action against the President" for his official acts).
Nor is presidential immunity of any kind explicit in the text of
the Constitution. Instead, whatever immunity the President
enjoys flows by implication from the separation of powers
doctrine, which itself is not mentioned in the Constitution, but
is reflected in the division of powers among the three branches.
See U.S. Const. arts. I, II, III. The Supreme Court in
Fitzgerald, after an exhaustive examination of the history and
the constitutional significance of the presidency, held that
absolute immunity from civil liability for official acts is "a
functionally mandated incident of the President's unique office,
rooted in the constitutional tradition of separation of powers
and supported by our history." 457 U.S. at 749. There is a
"special solicitude due to claims alleging a threatened breach of


                               -8-
essential Presidential prerogatives under the separation of
powers." Id. at 743.

     The parties agree, and so do we, that the fundamental
authority on the subject of presidential immunity is the
plurality opinion in Fitzgerald. As noted above, the issue
before the Court in that case was whether the President is
entitled to absolute immunity (rather than qualified immunity or
no immunity at all) from personal civil liability for his
official acts. By only a five-to-four majority, the Court held
that, "[i]n view of the special nature of the President's
constitutional office and functions, we think it appropriate to
recognize absolute Presidential immunity from damages liability
for acts within the 'outer perimeter' of his official
responsibility." Id. at 756. By definition, unofficial acts are
not within the perimeter of the President's official
responsibility at all, even the outer perimeter.5 The Court's
struggle in Fitzgerald to establish presidential immunity for
acts within the outer perimeter of official responsibility belies
the notion, here advanced by Mr. Clinton, that beyond this outer
perimeter there is still more immunity waiting to be discovered.
We thus are unable to read Fitzgerald as support for the
proposition that the separation of powers doctrine provides
immunity for the individual who serves as President from lawsuits
seeking to hold him accountable for his unofficial actions. See
id. at 759 (Burger, C.J., concurring) ("a President, like Members
of Congress, judges, prosecutors, or congressional aides--all
having absolute immunity--[is] not immune for acts outside
official duties").6 Moreover, having considered the arguments

     5
      We note that the dissenting opinion in the present case
does not mention Fitzgerald's "outer perimeter," much less
explain how unofficial acts could come within the protected zone.
     6
      The dissenting opinion, while liberally citing and quoting
Chief Justice Burger's concurrence, post at 27-28, 31, does not
mention that the Chief Justice expressly stated that the

                               -9-
put forward in the present case, we cannot discern any reason
grounded in the Constitution for extending presidential immunity
beyond the outer perimeter delineated in Fitzgerald.
Accordingly, we hold that a sitting President is not immune from
suit for his unofficial acts. In this case it is undisputed that
most of the acts alleged by Mrs. Jones clearly fall outside the
zone of official presidential responsibility, given that they
occurred while Mr. Clinton was still governor of Arkansas.7


     Stressing that the immunity claimed here is only temporary
(until the end of Mr. Clinton's presidency), Mr. Clinton and his
amici would have us consider the nature of Mrs. Jones's
complaint, as well as the timing of the filing of her suit
(apparently just within the statute of limitations), and conclude
that her suit is neither important nor urgent, and certainly not
consequential enough to trump Mr. Clinton's claim to temporal
immunity from suit. But that is not the test. Mrs. Jones is
constitutionally entitled to access to the courts and to the
equal protection of the laws. "The very essence of civil liberty
certainly consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury." Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). Mrs. Jones
retains that right in her suit against Mr. Clinton, regardless of
what her claims may be or when her suit was filed (if otherwise


President is "not immune for acts outside official duties."
     7
      Mrs. Jones's state law defamation claim concerns actions
alleged to have been taken by Mr. Clinton's presidential press
secretary while Mr. Clinton was President. The question whether
these actions fall inside the "'outer perimeter' of [the
President's] official responsibility," Nixon v. Fitzgerald, 457
U.S. 731, 756 (1982), so as to come within the scope of the
President's absolute immunity for official acts, is not free from
doubt. This particular issue has not been addressed by the
District Court, and the record as to the circumstances of the
press secretary's statements is not fully developed. We
therefore leave this issue for initial resolution by the District
Court after remand and upon a more complete record.

                              -10-
timely filed), provided that she is not challenging actions that
fall within the ambit of official presidential responsibility.
We further reject the suggestion that Mrs. Jones's motives in
filing suit, alleged to be political, should be examined, and
that her suit should be dismissed if we are persuaded that her
objective in bringing the suit is less than pure. Such an
approach would convert a presidential immunity analysis into the
taking and weighing of accusations and recriminations, an
exercise unnecessary and inappropriate to the proper
determination of a claim of immunity based on the Constitution.


     Mr. Clinton argues that, if he is presently amenable to suit
for his private acts, the proceedings against him inevitably will
intrude upon the office of President, in contravention of
Fitzgerald's teachings, noting the Court's concern that the
"diversion of [the President's] energies by concern with private
lawsuits would raise unique risks to the effective functioning of
government." 457 U.S. at 751. Thus, Mr. Clinton would have us
ignore the line that Fitzgerald draws between official and
unofficial acts and instead "balance the constitutional weight of
the interest to be served against the dangers of intrusion on the
authority and functions of the Executive Branch," the analysis
undertaken by the Court in reaching its decision on the question
of presidential immunity for official acts. Id. at 754. But the
Court in Fitzgerald was troubled by the potential impact of
private civil suits arising out of the President's performance of
his official duties on the future performance of those duties,
not by whether the President qua individual citizen would have
the time to be a defendant in a lawsuit. As the Court explained,
"[A] President must concern himself with matters likely to
'arouse the most intense feelings,'" and "it is in precisely such
cases that there exists the greatest public interest in providing
an official 'the maximum ability to deal fearlessly and
impartially with' the duties of his office." Id. at 752
(citations to quoted cases omitted). It is clear from a careful

                              -11-
reading of Fitzgerald that the justification for the absolute
immunity conferred in that case was concern that the President's
awareness of his essentially infinite potential personal
liability for virtually every official action he takes would have
an adverse influence on the presidential decision-making process.
The rationale of the Fitzgerald majority is that, without
protection from civil liability for his official acts, the
President would make (or refrain from making) official decisions,
not in the best interests of the nation, but in an effort to
avoid lawsuits and personal liability. This rationale is
inapposite where only personal, private conduct by a President is
at issue.


     Mrs. Jones's claims, except for her defamation claim,8
concern actions by Mr. Clinton that, beyond cavil, are unrelated
to his duties as President. This lawsuit thus does not implicate
presidential decision-making. If this suit goes forward, the
President still will be able to carry out his duties without any
concern that he might be sued for damages by a constituent
aggrieved by some official presidential act. Though amenable to
suit for his private acts, the President retains the absolute
immunity found in Fitzgerald for official acts, and presidential
decision-making will not be impaired. "In defining the scope of
an official's absolute privilege, . . . the sphere of protected
action must be related closely to the immunity's justifying
purposes." Id. at 755. We see no connection, much less a close
one, between the unofficial actions Mr. Clinton wishes to shield
from judicial process and the justifying purposes of presidential
immunity as set forth by the Court in Fitzgerald.


     Mr. Clinton argues that denying his claim to immunity will
give the judiciary carte blanche to intrude unconstitutionally
upon the Executive Branch and in fact will disrupt the

     8
      See supra note 7.

                              -12-
performance of his presidential duties and responsibilities. As
the argument goes, because a federal court will control the
litigation, the Third Branch necessarily will interfere with the
Executive Branch through the court's scheduling orders and its
powers to issue contempt citations and sanctions. But Mr.
Clinton's sweeping claim that this suit will allow the judiciary
to interfere with the constitutionally assigned duties of the
Executive Branch, and thus will violate the constitutional
separation of powers doctrine if immunity is not granted, without
detailing any specific responsibilities or explaining how or the
degree to which they are affected by the suit (and, unlike the
dissent, post at 30-31, 32, we think it is Mr. Clinton's burden
to do so), is insufficient ground for granting presidential
immunity, even temporarily. See Butz, 438 U.S. at 506
("[F]ederal officials who seek absolute exemption from personal
liability for unconstitutional conduct must bear the burden of
showing that public policy requires an exemption of that
scope."); cf. United States v. Nixon, 418 U.S. 683, 713 (1974)
(holding no presidential privilege attaches to presidential
communications subpoenaed in criminal case when asserted
privilege "is based only on the generalized interest in
confidentiality"). We reject Mr. Clinton's argument, and instead
focus our attention on the true separation of powers issues,
which we already have discussed, upon which the question of
presidential immunity hinges.
     "[T]he Constitution by no means contemplates total
separation of each of [the] three essential branches of
Government." Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per
curiam). Under the checks and balances provided for in the
Constitution, all branches have the capacity to intrude in some
way upon the province of the other branches. But under the
Constitution, and because of those same checks and balances, no
one branch may intrude upon another to such an extent that the
threatened branch is rendered incapable of performing its
constitutionally assigned duties. See id. at 122 ("The Framers

                              -13-
regarded the checks and balances that they had built into the
tripartite Federal Government as a self-executing safeguard
against the encroachment or aggrandizement of one branch at the
expense of the other."). What is needed, we believe, to avoid a
separation of powers problem is not immunity from suit for
unofficial actions, an immunity that would accord the President a
degree of protection from suit for his private wrongs enjoyed by
no other public official (much less ordinary citizens), but
judicial case management sensitive to the burdens of the
presidency and the demands of the President's schedule. The
trial court has broad discretion to control the scheduling of
events in matters on its docket.9 We have every confidence that
the District Court will exercise its discretion in such a way
that this lawsuit may move forward with the reasonable dispatch
that is desirable in all cases, without creating scheduling
conflicts that would thwart the President's performance of his
official duties.


     The unfettered filing of numerous vexatious or frivolous
civil lawsuits against sitting Presidents for their unofficial
acts that Mr. Clinton and the dissenting opinion in this case
envision if Mr. Clinton is not granted temporal immunity from
Mrs. Jones's lawsuit is not only speculative, but historically
unsupported. To date no court ever has held that an incumbent
President has any immunity from suit for his unofficial actions.
Although our Presidents never have been recognized as having any
immunity from lawsuits seeking remedies for civil liabilities


     9
      Notwithstanding the District Court's broad discretion in
matters concerning its own docket, the alternative rationale for
the stays the court granted--its power under Federal Rule of
Civil Procedure 40 and "the equity powers of the Court," Jones v.
Clinton, 869 F. Supp. at 699--attempts to justify orders that we
consider an abuse of discretion. Such an order, delaying the
trial until Mr. Clinton is no longer President, is the functional
equivalent of a grant of temporary immunity to which, as we hold
today, Mr. Clinton is not constitutionally entitled.

                              -14-
allegedly incurred by them in their personal dealings, it would
appear that few such lawsuits have been filed.10

     While the President himself and his official conduct
inevitably have the high visibility that concerned the Court in
Fitzgerald, 457 U.S. at 753 (noting "the visibility of [the
President's] office and the effect of his actions on countless
people" as setting him up as "an easily identifiable target for
suits for civil damages"), his unofficial, private conduct is on
a different footing. Although such conduct may attract
widespread attention when someone elects to make it public, the
unofficial acts of the person who serves as President, unlike the
President's official acts, are not likely to affect "countless
people." Rather, unofficial conduct will affect only those who
traffic with the President in his personal capacity. Thus the
universe of potential plaintiffs who might seek to hold the
President accountable for his alleged private wrongs via a civil
lawsuit is considerably smaller than the universe of potential
plaintiffs who might seek to hold the President accountable for
his official conduct; in the latter case, the plaintiff could be


     10
      The parties have identified only three prior instances in
which sitting Presidents have been involved in litigation
concerning their acts outside official presidential duties. See
also Jones v. Clinton, 869 F. Supp. at 697. Those suits were
against Theodore Roosevelt, Harry S Truman, and John F. Kennedy.
In each case, the action was filed before the defendant began
serving as President, and the suits against Presidents Roosevelt
and Truman were already on appeal before those men assumed the
office of President. People ex rel. Hurley v. Roosevelt, 71 N.E.
1137 (N.Y. 1904) (per curiam mem.); DeVault v. Truman, 194 S.W.2d
29 (Mo. 1946). It does not appear that either Mr. Roosevelt or
Mr. Truman claimed any immunity from suit. In the action against
Mr. Kennedy, he asserted, post-election, that he was temporarily
protected from suit under the Soldiers' and Sailors' Civil Relief
Act of 1940, 50 U.S.C. app. §§ 501-93 (1988 & Supp. V 1993),
given his status as Commander-in-Chief. The court denied Mr.
Kennedy's motion for a stay, apparently without a written
opinion, and the case eventually settled. Bailey v. Kennedy, No.
757,200 (Cal. Super. Ct. 1962); Hills v. Kennedy, No. 757,201
(Cal. Super. Ct. 1962).

                              -15-
virtually anyone who feels aggrieved by presidential action. If,
contrary to history and all reasonable expectations, a President
ever becomes so burdened by private-wrong lawsuits that his
attention to them would hinder him in carrying out the duties of
his office, then clearly the courts would be duty-bound to
exercise their discretion to control scheduling and the like so
as to protect the President's ability to fulfill his
constitutional responsibilities. Frivolous claims, a category
with which the courts are quite familiar, generally can be
handled expeditiously and ordinarily can be terminated with
little or no involvement by the person sued.


     Finally, we reject the notion that presidential immunity in
civil cases seeking a remedy for unofficial acts can be conferred
on an ad hoc basis. There is no constitutional basis for the
proposition that a court, in its discretion, could refuse to
grant immunity to a President in, for example, suits for
arrearages in child support or the case of the "more urgent need"
of a plaintiff seeking injunctive relief, Appellant's Reply Brief
at 21 n. 14, or of a plaintiff who shows exigent circumstances,
while granting immunity from suits for declaratory relief or
money damages where the plaintiff demonstrates no exigency. A
sitting President is either entitled to immunity from suit for
his unofficial acts, or he is not. As we have noted,
presidential immunity is not a prudential doctrine fashioned by
the courts. Mr. Clinton is entitled to immunity, if at all, only
because the Constitution ordains it. Presidential immunity thus
cannot be granted or denied by the courts as an exercise of
discretion. The discretion of the courts in suits such as this
one comes into play, not in deciding on a case-by-case basis
whether a civil complaint alleging private wrongs is sufficiently
compelling so as to be permitted to proceed with an incumbent
President as defendant, but in controlling the scheduling of the
case as necessary to avoid interference with specific,
particularized, clearly articulated presidential duties. If the

                              -16-
trial preliminaries or the trial itself become barriers to the
effective performance of his official duties, Mr. Clinton's
remedy is to pursue motions for rescheduling, additional time, or
continuances. Again, we have every confidence that the District
Court will discharge its responsibility to protect the
President's role as our government's chief executive officer,
without impeding Mrs. Jones's right to have her claims heard
without undue delay. If either party believes the court is
failing to discharge that responsibility, the proper course is to
petition this Court for a writ of mandamus or prohibition.


     To sum up, we hold that the Constitution does not confer
upon an incumbent President any immunity from civil actions that
arise from his unofficial acts. Accordingly, we affirm the
District Court's decision denying Mr. Clinton's motion to dismiss
Mrs. Jones's suit and the decision to allow discovery in this
case to proceed. For the same reason, we reverse the District
Court's order granting Mr. Clinton's motion to stay the trial of
this matter for the duration of his presidency. Mrs. Jones's
appeal of the District Court's post-judgment order staying
discovery during the pendency of this appeal is dismissed as
moot, as is Mr. Clinton's challenge to our jurisdiction to hear
that appeal. The case is remanded to the District Court, with
instructions to lift the stays that the court has entered and to
allow Mrs. Jones's suit against Mr. Clinton and Trooper Ferguson
to proceed in a manner consistent with this opinion and the
Federal Rules of Civil Procedure.


BEAM, Circuit Judge, concurring specially.


     I concur in the conclusions reached by Judge Bowman. I
write separately to express my views on three matters which are,
in my mind, insufficiently discussed by either the opinion of the
court or the dissent.


                              -17-
                                I.


     Mr. Clinton and his amicus vigorously present their position
on the potential impact of this civil litigation on the office and
the duties of the presidency. And, without question, they raise
matters of substantial concern given the constitutional obligations
of the office.     What is missing from their arguments is a
coordinate and balanced analysis of the impact a stay of the
litigation, including an embargo on all discovery, will have on Ms.
Jones and her claims. This should also be of substantial concern
because it involves fundamental constitutional rights governing
access to and use of the judicial process under the First and
Fourteenth Amendments and the right to a timely jury trial under
the Seventh Amendment, to identify only a few specific omissions.


     It is incorrect, in my view, for Mr. Clinton and his amicus to
assert that the delay is of no consequence to Ms. Jones. Aside
from the adage that justice delayed is justice denied, Ms. Jones
faces real dangers of loss of evidence through the unforeseeable
calamities inevitable with the passage of time. To argue that this
problem may be dealt with by episodic exceptions when the risk of
loss is apparent is to miss the point.      Only rarely does life
proceed in such a foreseeable fashion.


     The dissent states, "[w]here there is no urgency to pursue a
suit for civil damages, the proper course is to avoid opportunities
for breaching separation of powers altogether by holding the
litigation in abeyance until a President leaves office." Infra at
30. The dissent urges total abeyance of both discovery and trial.
I perceive this, perhaps incorrectly, to be an implicit finding
that there is, indeed, no real urgency to Ms. Jones's suit for
civil damages and, thus, the constitutionally based separation of
powers doctrine demands that this litigation, in all of its
manifestations, be abated until Mr. Clinton leaves office--this to
protect the constitutional grant of executive authority given to a

                               -18-
sitting President. In my view, this greatly oversimplifies the
issues in this appeal and overstates the danger to the presidency.
The potential for prejudice to Ms. Jones, as earlier noted,
reaches, or at least approaches, constitutional magnitude. If a
blanket stay is granted and discovery is precluded as suggested by
Mr. Clinton and his amicus, Ms. Jones will have no way that I know
of (and none has been advanced by those counseling this course of
action),1 to perpetuate the testimony of any party or witness
should they die or become incompetent during the period the matter
is held in abeyance. Should the death or incompetence of a key
witness occur, proving the elements of Ms. Jones's alleged causes
of action will become impossible.     Thus, her "chose in action"
would be obliterated, or at least substantially damaged if she is
denied reasonable and timely access to the workings of the federal
tribunal.


     It is true that some of Ms. Jones's claims would survive to
her guardian, heirs or assigns in the event of her incompetence or
death, assuming a way is found to preserve crucial evidence. Her
claim of defamation is in a different class. It almost certainly
would be totally extinguished should either party die. This would
also include her defamation claims asserted against Trooper
Ferguson.


     From the pleadings, the forum law applicable to her defamation
claims is not easily discernible and I have not canvassed the law
in every conceivable jurisdiction. It seems appropriate to note,
however, that under Arkansas law, for example, the defamation
claims would expire on the death of either party. See Ark. Code
Ann. § 16-62-101(b) (Michie 1987 & Supp. 1993); Parkerson       v.
Carrouth, 782 F.2d 1449, 1451-53 (8th Cir. 1986). I think Arkansas
expresses the rule of most jurisdictions.     Accordingly, one can


     1
      Only the amicus brief filed by the Solicitor General
fleetingly mentions this problem, but it offers no solutions.

                               -19-
readily see the irreparable harm that a stay of this claim
(assuming its viability as we must at this point) will bring to Ms.
Jones.   Thus, the total stay requested by Mr. Clinton and his
amicus, and embraced by the dissent, will immediately produce a
threat of irreparable injury.


     Even though a sitting President is not immune from liability
for his nonofficial conduct, it is fair to note that some of Ms.
Jones's defamation claims, as presently alleged, may well fit
within the "outer perimeter" of official responsibility as
discussed in Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982). Thus,
at the very least, absolute immunity defenses to these claims
should be immediately taken up and decided by the district court.


     The dissent appears to recognize the potential for irreparable
harm to Ms. Jones and proposes that her interests--as balanced
against the interests of Mr. Clinton--be analyzed and weighed by
shifting the burden of establishing "irreparable injury" to Ms.
Jones, along with the additional burden on Ms. Jones of showing
"that the immediate adjudication of the suit will not significantly
impair the President's ability to attend to the duties of his
office."    Infra at 30-31.     The dissent cites no established
authority or case precedent for this burden-shifting strategy, even
by analogy to some reasonably comparable situation.         I have
discovered none. In this regard, there is no way, in my view, that
a litigant could ever successfully shoulder the burden assigned by
the dissent, especially if all discovery is prohibited.          To
determine, as a precondition to "immediate adjudication," that at
some future time the lawsuit will not significantly impair the
duties of the President would be an impossible task. Thus, the
dissent's proposed safety valve is valueless, except in its
recognition of the potential for irreparable harm to Ms. Jones
caused by the total stay.




                               -20-
     Notwithstanding the separation of powers concerns outlined by
the dissent, the burden, in my view, should be shouldered, as in
any other civil litigation, by the party seeking to delay the usual
course of discovery and trial. Otherwise, we will have established
requirements of insurmountable proportions for any litigant who may
have a viable and urgent civil claim against a sitting President or
perhaps, against other important governmental figures with
constitutionally established duties.


     This approach to staying litigation is a well-established
legal concept.    Traditionally, an applicant for a stay has the
burden of showing specific hardship or inequity if he or she is
required to go forward.     Landis v. North American Co., 299 U.S.
248, 254-56 (1936). This may be a sub silentio recognition of the
terms of the Seventh Amendment. However, great public interest may
authorize a stay which is not immoderate or oppressive in its
consequences. Id. at 256. Thus, while there is a balancing to be
done, the presumption is on Ms. Jones's, not Mr. Clinton's, side.
When stays are granted, after the petitioner for the stay meets his
"heav[]y" burden of showing "the justice and wisdom of a departure
from the beaten track," they must be narrowly tailored or they
will amount to an abuse of discretion.      Id.     Of course, the
justice and wisdom of such a departure will take into account, in
this case, that one of the parties is the sitting President of the
United States. See generally United States v. Poindexter, 732 F.
Supp. 142, 146 (D.D.C. 1990).     Nonetheless, I agree with Judge
Bowman that Mr. Clinton should carry this initial burden, not Ms.
Jones.


     In determining whether to stay the litigation, Ms. Jones must
be given the benefit of the concept that "[t]he very essence of
civil liberty certainly consists in the right of every individual
to claim the protection of the laws, whenever [s]he receives an
injury." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 161 (1803)
(emphasis added). More recently, and explicitly, access to the

                               -21-
courts has been held to be a "fundamental constitutional right"
founded in the Due Process and Equal Protection clauses.       See
Bounds v. Smith, 430 U.S. 817, 828 (1977). This right is pivotal
to our system of governance in that "civil rights actions [such as
the 42 U.S.C. § 1983 action at issue here] are of `fundamental
importance . . . in our constitutional scheme' because they
directly protect our most valued rights."     Id. at 827 (quoting
Johnson v. Avery, 393 U.S. 483, 485 (1969)).


     Surely, if civil rights actions are of such importance that
they may not be impeded or delayed by a person's incarceration,
there must be at least an equal public interest in an ordinary
citizen's timely vindication of his or her most fundamental right
against alleged abuse of power by governmental officials.        As
noted, Ms. Jones has, in part, brought a 42 U.S.C. § 1983 action,
not a mere run-of-the-mill tort claim.     The violation of civil
rights through the abuse of state government positions of power has
been of such great public concern that Congress felt it necessary
to enact section 1983 to protect the citizenry and to hold persons
with positions of power accountable for its abuse. Thus, this is
not a minor civil dispute to which one can assign no public
interest beside that on the side of the presidency. The balance to
be considered, therefore, is not completely one sided. There is a
public interest, as well as an individual interest, on Ms. Jones's
side of the scale. These interests are of such weight that, at
least provisionally, Ms. Jones is entitled to proceed.

                               II.


     I now turn to the potential impact upon the duties of the
presidency.   The dissent eloquently and properly raises several
unanswered questions, infra at 29-30, concerning judicial branch
interference with the functioning of the presidency should this
suit be allowed to go forward. Again, I readily admit that these
are matters of major concern. In my view, however, these concerns

                               -22-
for interbranch interference are greatly overstated by Mr. Clinton
and his amicus.    Indeed, they are not appreciably greater than
those faced in many other instances in which a sitting President
interfaces as a party, witness, or target with the judicial and
legislative branches of the government.     Judge Bowman notes at
least three earlier instances in which sitting Presidents have been
involved in civil litigation outside of official presidential
duties. Supra at 14 & n.10. Also in the past, under appropriate
circumstances "several American Presidents and former Presidents
have given testimony under oath in judicial or quasi-judicial
settings."   1 Ronald D. Rotunda & John E. Nowak, Treatise on
Constitutional Law § 7.1 at 572 (2d ed. 1992). Former and sitting
Presidents have previously submitted, either voluntarily or
involuntarily, to questions under oath. Id.      By doing so, they
implicitly submitted to the common law      rule, expressed by Lord
Hardwicke, "that the public has a right     to every man's evidence"
8 John H. Wigmore, Evidence § 2192, at 71   (John McNaughton ed. rev.
1961)(quoting 12 Cobbett's Parliamentary    History 675, 693 (1942)).


     Is there any reason why this right should suffer an
     exception when the desired knowledge is in the possession
     of a person occupying at the moment the office of chief
     executive of a state?

          There is no reason at all. His temporary duties as
     an official cannot override his permanent and fundamental
     duty as a citizen and as a debtor to justice.


Id. at § 2370(c) (emphasis in original).


     As a sitting President, Richard Nixon was a defendant in at
least two civil actions. In one, Mr. Nixon was ordered by the
Supreme Court to produce tapes subpoenaed by a special prosecutor.
United States v. Nixon, 418 U.S. 683, 713 (1974). In the other,
National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir.
1974) the court held that a President is amenable to legal process,



                               -23-
even in his official capacity, if absolutely necessary.   Mr. Nixon
did not appeal that determination.


     Also, as noted by Rotunda and Nowak, President Jimmy Carter
gave videotaped testimony during his presidency that was presented
at the criminal conspiracy trial of two Georgia state officials.
See 1 Rotunda & Nowak § 7.1 at 575. Later, then-sitting President
Carter provided videotaped testimony for a grand jury investigating
charges that Robert Vesco had enlisted White House aid to quash
extradition proceedings against him. Id. Finally, still-sitting
President Carter was interviewed under oath by Justice Department
investigators probing "for criminal, civil, and administrative
purposes" any offenses resulting from Billy Carter's relations with
the Libyan Government. Id. Further, President Gerald Ford was
compelled to testify by videotape deposition in the criminal trial
of Lynette (Squeaky) Fromme, who was charged with attempting to
assassinate the President. Id. at 581. There are numerous other
instances in which a sitting President has both voluntarily or
involuntarily appeared at judicial proceedings and before
committees of Congress. Such instances have involved, at least,
Presidents Thomas Jefferson, James Monroe, Abraham Lincoln and
Ulysses S. Grant. See id. § 7.1.


     I concede that most of these situations have arisen within the
framework of governmental operations. I further concede that there
is not a perfect fit between the interests at play in the cited
interbranch proceedings and the civil litigation at issue here. My
point is that each named President has obviously scheduled these
encounters without creating a cataclysmic episode in which the
constitutional duties of the office have been compromised.


     Ms. Jones's complaint presents relatively uncomplicated civil
litigation, the discovery for which can and should be carried out
with a minimum of impact on the President's schedule.       It is
doubtful, for instance, that more than one, perhaps two, face-to-

                               -24-
face pretrial encounters between the President and Ms. Jones's
representatives need to occur.      Indeed, there is not even a
requirement that parties be present at the trial of civil
litigation and with some frequency they are not. At the bottom
line, the availability of written interrogatories, written requests
for admissions and written stipulations of undisputed facts, as
allowed by the Federal Rules of Civil Procedure, would indicate
that the actual impact of this litigation on the duties of the
presidency, if that is Mr. Clinton's real concern, is being vastly
magnified,   especially   assuming   the  trial   judge's   careful
supervision of the litigation with maximum consideration of the
President's constitutional duties.

                               III.


     My final concern involves Trooper Danny Ferguson.         Even
assuming,   for  sake   of   argument,  the   validity   of   every
constitutional claim or defense advanced by Mr. Clinton, I can find
no basis for staying discovery or trial of the claims against
Trooper Ferguson.   Whether private citizen or President, it is
unlikely that Mr. Clinton would choose to be present at the
deposition of Trooper Ferguson or any sundry witness; certainly he
would not be required to attend and no prejudice is likely to
result from his absence.    Neither would he need to be directly
concerned with other discovery directed to Trooper Ferguson
although it might, admittedly, affect his interests. Even so, I
find no separation of powers or other constitutional basis for a
stay for this portion of the litigation, especially the discovery
process.2

                               IV.

     2
      Any problems that arise from attempts by Trooper Ferguson
to depose or otherwise conduct discovery from Mr. Clinton, if
resisted, are, in my view, separate from the issues raised in
this appeal.

                               -25-
       I in no way seek to downplay the concerns outlined by the
dissent.   At the same time, I feel that Judge Bowman's opinion
reasonably   charts   a   fair  course   through   the   competing
constitutional waters and does so without serious injury to the
rights of any party.     As I have attempted to stress, nothing
prohibits the trial judge from halting or delaying or rescheduling
any proposed action by any party at any time should she find that
the duties of the presidency are even slightly imperiled. With
this understanding, I concur.


ROSS, Circuit Judge, dissenting.


     I respectfully dissent from the majority opinion. Instead, I
would affirm the judgment of the district court concluding that the
civil action should not be dismissed, but stayed during the
President's term in office. Further, I would reverse the district
court's conclusion allowing discovery to proceed.


     In my opinion, the language, logic and intent of Nixon v.
Fitzgerald, 457 U.S. 731 (1982), although set in the context of
official acts, applies with equal force to the present factual
scenario and directs a conclusion here that, unless exigent
circumstances can be shown, private actions for damages against a
sitting President of the United States, even though based on
unofficial acts, must be stayed until the completion of the
President's term.


     The Fitzgerald decision was derived from both the functional
necessities of the President's execution of Article II duties, and
the principle that no branch should be subject to crippling
incursions by another branch.    The Court's reasoning is highly
instructive in the present case because it demonstrates the
importance of insulating the President from the disruptive effects
of private suits against him, whether based on official or

                               -26-
unofficial acts. The Fitzgerald Court placed primary reliance on
the prospect that the President's discharge of his constitutional
powers and duties would be impaired if he were subject to suits for
damages. The Court stated, "[b]ecause of the singular importance
of the President's duties, diversion of his energies by concern
with private lawsuits would raise unique risks to the effective
functioning of government." Id. at 751.


     This "diversion of energies" argument refers not only to the
concern with whether the President will execute his official duties
in a fearless and impartial manner, but also recognizes that the
"President occupies a unique position in the constitutional
scheme," one that "distinguishes him from other executive
officials." Id. at 749, 750. Article II, § 1 of the Constitution
uniquely vests the entire executive power in the President. No
other branch of government is entrusted to a single person. It is
this singularity of the President's constitutional position that
calls for protection from civil litigation.


     The unofficial nature of the alleged events would not make
defending a private suit for civil damages any less of a burden on
the President's time and attention and therefore on his
constitutional responsibilities, or any less of a "risk[] to the
effective functioning of government."     Id. at 751.    When the
President is called upon to defend himself during his term of
office, even in actions wholly unrelated to his official
responsibilities, the dangers of intrusion on the authority and
functions of the Executive Branch are both real and obvious. The
burdens and demands of civil litigation can be expected to impinge
on the President's discharge of his constitutional office by
forcing him to divert his energy and attention from the rigorous
demands of his office to the task of protecting himself against
personal liability.   That result would disserve the substantial
public interest in the President's unhindered execution of his


                               -27-
duties and would impair the integrity of the role assigned to the
President by Article II of the Constitution.


     Further, the Fitzgerald majority was concerned with the
possibility that the "sheer prominence of the President's office"
makes a President "an easily identifiable target for suits for
civil damages." Id. at 752-53. In his concurrence, Chief Justice
Burger noted the possibility that private suits for damages against
a President could be used for purposes of harassment and extortion.
Id. at 762, 763 (Burger, C.J., concurring). While stated in the
context of official acts, Chief Justice Burger's concurrence
applies with equal force to the present case:


     The need to defend damages suits would have the serious
     effect of diverting the attention of a President from his
     executive duties since defending a lawsuit today -- even
     a lawsuit ultimately found to be frivolous -- often
     requires significant expenditures of time and money, as
     many former public officials have learned to their
     sorrow. . . . When litigation processes are not tightly
     controlled . . . they can be and are used as mechanisms
     of extortion. Ultimate vindication on the merits does
     not repair the damage.


Id. at 763 (Burger, C.J., concurring).


     The same concerns are implicated in the present action as
well, where such suits could be pursued merely for the purpose of
gaining   partisan   political  disruption,   public   notoriety,
unwarranted financial gain, or potential extortion. Indeed, any
number of potential private claims could be contrived to entangle
a sitting President in embarrassing or protracted litigation,
alleging unwitnessed one-on-one encounters that are extremely
difficult to dispose of by way of a pretrial motion.


     The Fitzgerald Court also recognized that presidential
immunity is "rooted in the separation of powers under the
Constitution." Id. at 753 (quoting United States v. Nixon, 418

                               -28-
U.S. 683, 708 (1974)). The Court noted that the Framers of the
Constitution assumed that "the President, personally, was not the
subject to any process whatever. . . . For [that] would . . . put
it in the power of a common justice to exercise any authority over
him and stop the whole machine of Government." Id. at 751 n.31
(quoting Journal of William Maclay 167 (E. Maclay ed. 1890)
(alteration in original). Quoting Thomas Jefferson, the Supreme
Court further underscored its concern that exercising jurisdiction
over a President would create the opportunity for unconstitutional
judicial intrusion upon Executive authority:


     [W]ould the executive be independent of the judiciary, if
     he were subject to the commands of the latter, & to
     imprisonment for disobedience; if the several courts
     could bandy him from pillar to post, keep him constantly
     trudging from north to south & east to west, and withdraw
     him entirely from his constitutional duties?


Id. (quoting 10 The Works of Thomas Jefferson 404 (P. Ford ed.
1905)).


     In my view, the separation of powers doctrine requires that
private civil actions against a sitting President for unofficial
acts must be stayed during the President's term in office. Civil
lawsuits against a President create opportunities for the judiciary
to intrude upon the Executive's authority, set the stage for
potential constitutional confrontations between courts and a
President, and permit the civil justice system to be used for
partisan political purposes.      It cannot be denied that the
potential for such conflicts is inherent in subjecting any
President personally to a court's jurisdiction.


     The majority concludes the remedy for interference with the
performance of the President's official duties by the demands of
discovery and trial preparations and proceedings is the filing of
motions with the court for rescheduling, additional time or
continuances.    Ante at 16.      If this route proves to be

                               -29-
unsuccessful, the majority suggests the President should be
required to petition this Court for a writ of mandamus or
prohibition, id., and arguably then to appeal any adverse decision
to the Supreme Court. This suggestion, however, clearly epitomizes
the separation of powers conflict inherent in a system that
subjects a sitting President personally to the court's jurisdiction
for the purpose of private civil litigation.


     The majority's decision leaves as many questions unanswered as
it answers: Must a President seek judicial approval each time a
scheduled deposition or trial date interferes with the performance
of his constitutional duties? Is it appropriate for a court to
decide, upon the President's motion, whether the nation's interest
in the unfettered performance of a presidential duty is
sufficiently weighty to delay trial proceedings? Once a conflict
arises between the court and the President as to the gravity of an
intrusion on presidential duties, does a court have the authority
to ignore the President's request to delay proceedings? Finally,
can a court dictate a President's activities as they relate to
national and international interests of the United States without
creating a separation of powers conflict? While the majority would
encourage other courts to exercise "judicial case management
sensitive to the burdens of the presidency," ante at 13, only a
stay of civil litigation during a President's term in office will
ensure the performance of Executive duties unencumbered by the
judiciary and thereby avoid separation of powers conflicts.


     While noting that the separation of powers doctrine "does not
bar every exercise of jurisdiction over the President of the United
States," Fitzgerald, 457 U.S. at 753-54, in view of the significant
encroachment upon presidential duties and independence that would
necessarily accompany litigation, the Fitzgerald Court admonished
that, before asserting such jurisdiction, a court "must balance the
constitutional weight of the interest to be served [by the
litigation] against the dangers of intrusion on the authority and

                               -30-
functions of the Executive Branch." Id. at 754 (emphasis added)
(citing Nixon v. GSA, 433 U.S. 425, 443 (1977); United States v.
Nixon, 418 U.S. at 703-13)).


     Where there is no urgency to pursue a suit for civil damages,
the proper course is to avoid opportunities for breaching
separation of powers altogether by holding the litigation in
abeyance until a President leaves office.     The cause of action
should be stayed unless the plaintiff can show that he or she will
suffer irreparable injury without immediate relief and that the
immediate adjudication of the suit will not significantly impair
the President's ability to attend to the duties of his office.


     It is important to keep in mind that the issue here is not
whether the President may be required to answer claims based on
unofficial conduct, but when.      This conclusion merely delays,
rather than defeats, the vindication of the plaintiff's private
legal interests, and thus is far less burdensome for a plaintiff
than the absolute immunity recognized in Fitzgerald. A stay for
the duration of the President's service in office would not prevent
Jones from ultimately obtaining an adjudication of her claims.
Rather, staying the litigation will protect the important public
and constitutional interests in the President's unimpaired
performance of his duties, while preserving a plaintiff's ability
to obtain resolution of his or her claims on the merits.
Postponing adjudication of private damage actions will rarely
defeat a plaintiff's ability to ultimately obtain meaningful
relief. "[W]e do well to bear in mind that the focus must not be
simply on the matter of judging individual conduct in a fact-bound
setting; rather, in those familiar terms of John Marshall, it is a
Constitution we are expounding. Constitutional adjudication often
bears unpalatable fruit. But the needs of a system of government
sometimes must outweigh the right of individuals to collect
damages." Id. at 758-59 (Burger, C.J., concurring).


                               -31-
     The well-known travail of litigation and its effect on the
ability of the President to perform his duties, as well as the
subjection of the President to the ongoing jurisdiction of the
courts and the attendant impact on the separation of powers,
dictate the postponement of non-exigent, private civil damages
litigation until the President leaves office.


     In my opinion, the stay should include pretrial discovery, as
well as the trial proceedings, because discovery is likely to pose
even more intrusive and burdensome demands on the President's time
and attention than the eventual trial itself. Similarly, I would
grant a stay of proceedings against a co-defendant of a sitting
President where, given all the circumstances, the claims against
the co-defendant cannot proceed without materially diminishing the
effectiveness of a stay of proceedings against the President. I
agree with the district court's conclusion here that a stay of the
claims against Trooper Ferguson is essential if the President is to
be fully protected.


     Out of respect for the separation of powers and the unique
constitutional position of the President, I conclude the President
ordinarily should not be required to defend himself against civil
actions until after the completion of his service in office.
Therefore I would hold that to rebut the presumption that private
suits against a sitting President should not go forward during the
President's service in office, the plaintiff should have to
demonstrate convincingly both that delay will seriously prejudice
the plaintiff's interests and that immediate adjudication of the
suit will not significantly impair the President's ability to
attend to the duties of his office. Absent such a showing, the
litigation should be deferred.




                               -32-
A true copy.


     Attest:


          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                         -33-
