Interest of the Amici Curiae

Amicus Curiae, the Southeastern Legal Foundation, Inc., is a non-profit public interest organization that promotes the public interest in the proper construction and enforcement of the laws and the Constitution of the United States. The Southeastern Legal Foundation was established in Georgia for the purpose of participating in the public policy process and engaging in litigation in the public interest. In addition to legislative initiatives and promulgation of programs designed to inform and educate the public, the organization’s attorneys represent plaintiffs in courts throughout the country to enforce laws advancing its interests through litigation.

Amicus Curiae L. Lynn Hogue is a member of the Arkansas Bar and a Professor of Law at the Georgia State University College of Law.

Mr. Hogue, as then General Counsel of the Southeastern Legal Foundation, Inc., filed a verified complaint with the Committee on Professional Conduct of the Arkansas State Bar seeking to disbar William J. Clinton. As a member of the Arkansas bar, Mr. Hogue was obligated by its rules to bring Mr. Clinton’s unprofessional conduct to the attention of the state bar. In addition, as one directly involved in the professional formation of future attorneys, Mr. Hogue felt that professional misconduct by an Arkansas attorney, who was also President of the United States, carried with it added harm to the profession if not appropriately censured.

After the Arkansas Committee on Professional Conduct refused to take any action on his complaint, Mr. Hogue filed a petition for a writ of mandamus with the Supreme Court of Arkansas. The writ was granted and only then did the Arkansas Committee on Professional Conduct initiate disbarment proceedings against Mr. Clinton. These proceedings concluded with an Agreed Order of Discipline pursuant to which Mr. Clinton was suspended from practice for five years. This ultimately lead to the institution of the instant proceedings relating to the disbarment of Mr. Clinton from the bar of this Court. Accordingly, the Southeastern Legal Foundation, Inc. and Mr. Hogue, whose active role was acknowledged in the Agreed Order, have a meaningful interest in the outcome of this matter.

Consistent with their initial efforts to have Mr. Clinton disbarred in Arkansas, the Amici urge in this brief that Mr. Clinton be disbarred from the Supreme Court.

Statement of the Case

This matter is before the Court pursuant to Supreme Court Rule 8.1 as a result of a five-year suspension of William J. Clinton from the Arkansas State Bar.

The Arkansas bar discipline case arose from Mr. Clinton’s unlawful conduct in the case of Jones v. Clinton in the Eastern District of Arkansas. Eventually, Mr. Clinton was granted summary judgment against Ms. Jones. Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998). While that judgment was on appeal, Mr. Clinton settled with Ms. Jones by paying $850,000, an amount greater than that prayed for in her complaint. See Jones v. Clinton, 36 F. Supp.2d 1118, 1123 (E.D. Ark. 1999), App. Ex. 5 at 1.

Additionally, an the Office of Independent Counsel (“OIC”), conducted an intensive criminal investigation of the President’s misconduct in the Jones v. Clinton case. The OIC concluded that there was substantial and credible evidence that Mr. Clinton, while President, had committed acts that might constitute grounds for impeachment and, consequently, OIC made an appropriate referral to the U.S. House of Representatives pursuant to 28 U.S.C. 595(c). The House subsequently approved two articles of impeachment, one for perjury before the grand jury investigating Mr. Clinton, and one for obstruction of justice in the Jones v. Clinton case. Mr. Clinton was tried in the Senate and acquitted, and served out the remainder of his term as President.

On September 15, 1998, shortly after the Report of the OIC was made public, the Southeastern Legal Foundation and L. Lynn Hogue, Amici herein, filed a petition to disbar Mr. Clinton with the Committee on Professional Conduct of the Arkansas Supreme Court (the “Arkansas Bar Committee”). Mr. Hogue is a member of the Arkansas Bar, a law professor at the Georgia State University College of Law, and was, at the time, the general counsel of the Southeastern Legal Foundation (“SLF”). Professor Hogue filed his complaint in discharge of his reporting obligation under Rule 8.3(a) of the Arkansas Model Rules of Professional Conduct (the “Model Rules”) and out of concern as one directly involved in the professional formation of future attorneys, that such serious misconduct by a high ranking public official, indeed the holder of the highest public office in this country, would lessen the repute enjoyed by lawyers and foster disrespect for our courts and their proceedings. The petition for disbarment was based on the overwhelming and unrefuted proof set forth by the OIC that Mr. Clinton had engaged in lying, deceit, perjury, fraud, dishonesty, untrustworthiness, obstruction of justice, subornation of perjury, tampering with witnesses and other forms of misconduct prejudicial to the administration of justice which constituted misconduct under Rule 8.4 of the Model Rules. Although Mr. Clinton was not acting as counsel when he did these things, he was at the time a member of the bar and the President of the United States. As the comment to Rule 8.4 emphasizes: “Lawyers holding public office assume legal responsibilities going beyond those of other citizens.” As President, the scope of the harm flowing from his misconduct would be magnified if it were not appropriately redressed.

Following Mr. Clinton’s acquittal in the Senate, the presiding judge in Clinton v. Jones, U.S. District Judge Susan Weber Wright, held him in civil contempt of court for intentionally giving multiple false, evasive and misleading answers in depositions and interrogatory responses. See Jones v. Clinton, 36 F. Supp.2d 1118 (E.D. Ark. 1999), App. Ex. 5 at 1. Judge Wright ordered Mr. Clinton to pay certain attorneys fees to plaintiff’s counsel, which were later determined to be $89,484.05, as well as $1,202 for the Court’s travel expenses to attend his deposition. See Jones v. Clinton, 57 F. Supp.2d 719 (E.D. Ark. 1999), App. Ex. 5 at 32. As a part of her contempt ruling, Judge Wright also referred the matter of Mr. Clinton’s conduct to the Arkansas Bar Committee. Jones v. Clinton, 36 F. Supp.2d at 1132, App. Ex. 5 at 32.

The Arkansas Bar Committee took no action whatsoever in response to Professor Hogue’s September 15, 1998, complaint against Mr. Clinton or in response to Judge Wright’s later referral, though the Committee was clearly required to do so. After SLF’s complaint had languished for more than a year and Judge Wright’s referral had lain dormant for 8 months, SLF and Mr. Hogue file a petition for a writ mandamus to compel the Arkansas Bar Committee to act on the complaints against Mr. Clinton. App. Ex. 1.

The Arkansas Bar Committee resisted the petition for a writ of mandamus, but on January 27, 2000, it was granted by the Arkansas Supreme Court, which ordered the Arkansas Bar Committee to act forthwith on the complaints against Mr. Clinton as required by its rules. See Hogue v. Neal, 340 Ark. 250, 12 S.W.3d 186 (2000), App. Ex. 9.

Thereafter, the Arkansas Bar Committee filed a Complaint for disbarment against Mr. Clinton. That case was settled on January 19, 2001, the last day of Mr. Clinton’s Presidency, through an Agreed Order of Discipline pursuant to which Mr. Clinton agreed

A. That he knowingly gave evasive and misleading answers, in violation of Judge Wright’s discovery orders, concerning his relationship with Ms. Lewinsky, in an attempt to conceal from plaintiff Jones’ lawyers the true facts about his improper relationship with Ms. Lewinsky, which had ended almost a year earlier.

B. That by knowingly giving evasive and misleading answers, in violation of Judge Wright’s discovery orders, he engaged in conduct that is prejudicial to the administration of justice in that his discovery responses interfered with the conduct of the Jones case by causing the court and counsel for the parties to expend unnecessary time, effort, and resources, setting a poor example for other litigants, and causing the court to issue a thirty-two page Order civilly sanctioning Mr. Clinton.

Agreed Order of Discipline, pp. 3-4. Pursuant to the Agreed Order, Mr. Clinton was suspended from the practice of law for five years, and ordered to pay a $25,000 fine. Id.

The OIC also reached an agreement with Mr. Clinton on January 19, 2001, in which it agreed not to prosecute him for anything related to the Lewinsky matter in consideration of the Agreed Order of Discipline and the agreement by Mr. Clinton not to seek any fees incurred in the OIC investigation. See Press Release of OIC, dated January 19, 2001, and other related documents at http://www.oicray.com/news/news.htm.

Mr. Clinton has incurred several millions of dollars in legal fees in both the Jones case and in the OIC investigation of his conduct in the Lewinsky matter. Between the Jones case and the Agreed Order of Discipline, he has paid nearly $1,000,000 in settlement, opponents’ attorneys fees and fines. He is the only elected president to be impeached, and the only president to have faced professional censure proceedings while in office, and, as a result, he has earned substantial public ignominy.

Summary of Argument

The Court’s precedents establish that in order to avoid disbarment, Mr. Clinton must show some “grave” reason why he should not be disbarred. Mr. Clinton will be unable to carry this burden because it has been conclusively established in other proceedings that he intentionally and repeatedly lied under oath and engaged in a pattern of conduct highly prejudicial to the administration of justice. At the time of his misconduct, Mr. Clinton was the President of the United States and as such, had a special duty to conduct himself in an honorable manner. The prominence of his position and the example set by his behavior make it all the more important to the maintenance of the integrity of the judicial system that he be held accountable to the standards of conduct governing the legal profession. Accordingly, Mr. Clinton should be disbarred from the Supreme Court of the United States.

Argument and Citation of Authority

I. Disbarment Standards and Procedure in the Supreme Court

Pursuant to Supreme Court Rule 8.1, the Court has provisionally suspended Mr. Clinton and ordered him to show cause why he should not be disbarred from the Supreme Court. Mr. Clinton, through his attorney, has publicly announced his intention to contest his disbarment. Rule 8.1 provides as follows:

Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, or has engaged in conduct unbecoming of a member of the Bar of this Court, the Court will enter an order suspending that member from practice before this Court and affording the member an opportunity to show cause, within 40 days, why a disbarment order should not be entered.

This Court relies upon the processes of the bars of the various states for testing the qualifications for membership. As explained in In re Disbarment of Isserman, 345 U.S. 286 (1953), vacated, 348 U.S. 1 (1954)[1],

This Court (as well as the federal courts in general) does not conduct independent examinations for admission to its bar. To do so would be to duplicate needlessly the machinery established by the states whose function it has traditionally been to determine who shall stand to the bar. Rather our rules provide for eligibility in our bar of those admitted to practice for the past three years before the highest court of any state. The obvious premise of the rule is the confidence which this Court has in the bars maintained by the states of the Union.

In re Disbarment of Isserman, 345 U.S. at 287-88.

When a member of the bar of this Court is disbarred by a state, there is a similar reliance on the state bar’s determination:

Disbarment by a state does not automatically disbar members of our bar, but this Court will, in the absence of some grave reason to the contrary, follow the finding of the state that the character requisite for membership in the bar is lacking.

Id. at 289. (Emphasis added). Selling v. Radford, 243 U.S. 46 (1917) explained that where the Supreme Court, as here, initiates discipline based on a state bar disciplinary action, disbarment will follow unless the respondent shows

1, that the state procedure, from want of notice or opportunity to be heard, was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on the subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.

Selling v. Radford, 243 U.S. at 51. There are no procedural or due process issues in this case, inasmuch as the Arkansas discipline was imposed in an agreed order. Consequently, Mr. Clinton can avoid disbarment only by showing some other “grave reason” for such a result.

II. Mr. Clinton Cannot Show any “Grave Reason” Why He Should Not Be Disbarred.

Mr. Clinton can be expected to argue that he should not be disbarred in this Court because he was suspended rather than disbarred in Arkansas. That the Arkansas State Bar imposed a five year suspension rather than disbarment is no obstacle to disbarment in this court. See In re Osborne, 420 U.S. 918 (1975) (suspension in New York, disbarment in Supreme Court); In re Buttles, 419 U.S. 1101 (1975) (same); In re Disbarment of Mades, 414 U.S. 1154 (1974) (suspension in Massachusetts, disbarment in Supreme Court).

Mr. Clinton and his defenders have in the past argued that his misconduct occurred in his private life and did not involve his duties as president or as an attorney. In fact, Mr. Clinton’s status as President compounded rather than mitigated the gravity of his misconduct, as both the Arkansas Bar Committee and Judge Wright took special note. Agreed Order, p. 2-3; Jones v. Clinton, 36 F. Supp.2d at 1131, App. Ex. 5 at 25. Accordingly, the comment to Rule 8.4 of the Model Rules emphasizes the special responsibilities to the profession of law owed by “[l]awyers holding public office.” Moreover, this Court’s precedents do not admit of any distinction between private and public character. As this Court explained in Selling v. Radford, 243 U.S. 46 (1917):

[T]he continued possession of a fair private and professional character is essential to the right to be a member of this Bar. It follows, therefore, that the personality of the member and these inherent and prerequisite qualifications for membership of this Bar are indivisible, that is, inseparable. They must, if they exist, follow the personality of one who is a member of the Bar and hence their loss by wrongful personal and professional conduct, wherever committed, operates everywhere and must in the nature of things furnish adequate reason in every jurisdiction for taking away the right to continue to be a member of the Bar in good standing.

Selling v. Radford, 243 U.S. at 49. Any basis for a distinction between Mr. Clinton’s private and public character that could be relevant for present purposes is rebutted by the facts underlying the disciplinary action of the Arkansas Bar and the contempt citation of Judge Wright, both of which equate the misconduct.

Judge Susan Webber Wright’s Memorandum Opinion and Order of April 12, 1999, is illustrative:

Given the President’s admission that he was misleading with regard to the questions being posed to him and the clarity with which his falsehoods are revealed by the record, there is no need to engage in an extended analysis of the President’s sworn statements in this lawsuit. Simply put, the President’s deposition testimony regarding whether he had ever been alone with Ms. Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false, notwithstanding tortured definitions and interpretations of the term “sexual relations.”

36 F. Supp.2d at 1131, App. Ex. 8 at 16 (emphasis added). Judge Wright held that

[T]he record demonstrates by clear and convincing evidence that the President responded to plaintiffs[’] questions by giving false, misleading and evasive answers that were designed to obstruct the judicial process. … Although there are a number of aspects of the President’s conduct in this case that might be characterized as contemptuous, the Court addresses at this time only those matters which no reasonable person would seriously dispute were in violation of this Court’s discovery Orders and which do not require a hearing, namely the President’s sworn statements concerning whether he and Ms. Lewinsky had ever been alone together and whether he had ever engaged in sexual relations with Ms. Lewinsky.

Jones v. Clinton, 36 F. Supp.2d at 1127 (emphasis added).

This Order was not appealed by Mr. Clinton and he elected to pay the fine imposed therein. These findings are settled and their gravity obvious. Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985). Mr. Clinton should not be permitted to validate his unique definition of “legally accurate.”

JUDGE RICHARD A. POSNER analyzed Mr. Clinton’s conduct from a criminal perspective in his book AN AFFAIR OF STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1999), 54-55:

To summarize, it is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of the federal criminal law, by (1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to the questions put to him by the House Judiciary Committee; (2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed, and to secrete the gifts that she had received from him; and (3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason she had been transferred from the White House to the Pentagon….

Even if, as I do not for a moment believe, none of President Clinton’s lies under oath amounted to perjury in the strict technical sense, they were false and misleading statements designed to derail legal proceedings, and so they were additional acts of obstruction of justice - as well as additional overt acts of a conspiracy to obstruct justice involving Clinton, Lewinsky, Currie, and possibly Jordan and others as well, such as Blumenthal.

The Agreed Order found that this conduct violated Rule 8.4(d) of the Model Rules. Mr. Clinton’s obdurate pattern of lies and evasions is powerful proof that he is unfit to retain his membership in the bar of this Court. It is settled that the public interest in a bar free of those who engage in conduct prejudicial to the administration of justice amply warrants the strong medicine of disbarment.

Finally this Court has long ago rejected the “suffered enough” argument as a defense to disbarment:

It is said that respondent has already been punished enough for his contempt and that to disbar him is excessive, vindictive punishment. Such an attitude misconceives the purpose of disbarment. There is no vested right in an individual to practice law. Rather there is a right in the Court to protect itself, and hence society, as an instrument of justice. That to the individual disbarred there is a loss of status is incidental to the purpose of the Court and cannot deter the Court from its duty to strike from its rolls one who has engaged in conduct inconsistent with the standard expected of officers of the Court. In so doing, we do not lay down a rule of disbarment for mere contempt; rather we have considered the basic nature of the actions which were contemptuous and their relationship to the functioning of the judiciary.

In re Disbarment of Isserman, 345 U.S. at 289 (plurality opinion per Vinson, C.J.), vacated, 348 U.S. 1 (1954) (failure to achieve “the concurrence of a majority of the Justices participating”).

Here, the need to disbar Mr. Clinton as a means of self-defense for the judicial system is made all the more urgent by Mr. Clinton’s status as President of the United States at the time of his misconduct. As Judge Wright held,

Nevertheless, the President’s contumacious conduct in this case, coming as it did from a member of the bar and the chief law enforcement officer of this Nation, was without justification and undermined the integrity of the judicial system. “Our adversary system depends on a most jealous safeguarding of truth and candor,” U.S. v. Shaffer Equip. Co., 11 F.3d 450, 463 (4^th Cir. 1993), and “[t]he system can provide no harbor for clever devises to divert the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end.” Id. at 457-58. Sanctions must be imposed, not only to redress the misconduct of the President in this case, but to deter others who, having observed the President’s televised address to the Nation in which his defiance of this Court’s discovery Orders was revealed, might themselves consider emulating the President of the United States by willfully violating discovery orders of this and other courts, thereby engaging in conduct that undermines the integrity of the judicial system.

In the disbarment of Richard M. Nixon from the New York State Bar, the Supreme Court of New York held that

The gravamen of respondent’s conduct is obstruction of the due administration of justice, a most serious offense, but one which is rendered even more grievous by the fact that in this instance the perpetrator is an attorney and was at the time of the conduct in question the holder of the highest public office of this country and in a position of public trust. We note that while Mr. Nixon was holding public office he was not acting in his capacity as an attorney. However, the power of the Court to discipline an attorney extends to misconduct other than professional malfeasance when such conduct reflects adversely upon the legal profession and is not in accordance with the high standards imposed upon members of the Bar [citations omitted]. We find that the evidence adduced in the case at bar warrants the imposition of the most severe sanction available to the Court and accordingly, we direct that respondent should be disbarred.

In the Matter of Richard M. Nixon, 385 N.Y.2d 305, 307 (1976).

The record and circumstances of this case show no reason, much less a grave reason, why Mr. Clinton should not be disbarred. To the contrary, the evidence is overwhelming that Mr. Clinton’s conduct was inimical to and destructive of the administration of justice. Anything short of disbarment would condone his actions and thereby inflict even greater harm on our system of justice. William Jefferson Clinton should be disbarred.

Respectfully submitted,

Valle Simms Dutcher*

Georgia Bar No. 235960

L. Lynn Hogue

Arkansas Bar No. 79165

Georgia Bar No. 360037

Southeastern Legal Foundation, Inc.

3340 Peachtree Road, NE

Suite 2515

Atlanta, Georgia 30326

(404) 365-8500

Harry W. MacDougald

Georgia Bar No. 463076

152 Nassau Street

Atlanta, Georgia 30303

(404) 688-6100

[1] The original Isserman opinion was decided by an equally divided Court, Justice Clark taking no part in the proceeding. It was vacated following the adoption of Rule 8, which required a majority vote for disbarment.

Question Presented