Interview with Gil Davis

Gil Davis calls himself a “country lawyer” who represented Paula Jones in her lawsuit against President Clinton. This first part of the interview was interesting to us because he used the classical method of answering our questions… he gave examples of the difficulty individuals have when faced with decisions.

Helen: We’d like to remind Americans today about the foundations of America. We had all been reminded, during President Reagan’s funeral, that once one has a firm grasp of one’s core principles, it’s alot easier to make decisions. So we’d like to hear some of your current ideas and work, but also to delve into the basic principles that sustain you. Too often we hear people complaining they don’t know how to make a decision one way or the other. Sometimes a bit of American history and knowledge of basic foundational principles of our country will help. We’re trying to fill the gap where the current educational system is failing.

Gil: We have to have everyone feel sensitive and socially adjusted and so we have classes on that, yet civics are sometimes ignored.

Helen: Few people realize America was called the Great Experiment because it is an experiment in human freedom and self-government What do you see as the strengths and weaknesses of this system of government?

Gil: When you say it’s an experiment, that’s right. It really was the new thing on the block. We were the first republic since the Roman republic. George Washington was the first leader of a nation who voluntarily relinquished his job as leader to go back to his home. He wasn’t assassinated or deposed. He could have been a king if he had wanted to, because he was the only one they trusted.

Peter: Let me clarify something. You mentioned that the American republic was the first republic since the Roman republic. It’s pretty obvious how a republic differs from a monarchy, but how would you distinguish it from the term we generally use, ‘democracy’?

Gil: A republic is a representative government where the people choose those who make the decisions; the people themselves don’t make the decisions. The Athenian model is a direct democracy where the people themselves made the decisions. It was interesting in that they had rotating leaders and big committees of three or four hundred, so in a sense they were representative, but they were all involved directly in the decisions. It was wise of our founders to construct our system the way they did because it was easier to put in checks and balances so that the majority could work its will, but still maintain rights for the minority. In a direct democracy, minority rights could be squelched. Plus a direct democracy for this country as it’s developed and grown would be an almost impossible way to govern. Now, ironically, with the internet, maybe everyone could have direct access. However, probably everyone wouldn’t want to take the time it would require, especially now, with a government that’s into everything.

Helen: We’ve heard it suggested that people could use the remote controls on their TV, but wouldn’t that just promote the passion of the moment, the very thing our founding fathers wanted to diminish?

Gil: Sure, that’s why we have a representative government, based on the Roman model. Even our architecture in Washington DC is Roman, not Greek. There’s a story of Samuel Adams showing up in a Roman toga before the revolution to remind people what form of government we were going to fight for. A hero of the revolution, who is not even read anymore, was Cicero. All the Founding Fathers were well versed in Roman and Greek history; the Classics.

Helen: So where would the strengths and weaknesses be in this system? For instance, some people might think that their representatives don’t really represent them.

Gil: Edmund Burke said, “your representative owes you not his industry only, but his judgment. He betrays you if he sacrifices it to your opinion.” Now, because public office holders have to go back to their home and the people in their district to get renewed in office, that in itself is a check on totally ignoring their own constituencies. But the fact that they serve terms gives them the opportunity to be safe in using their judgment, but sometimes you have to use judgment when you’re not safe.

For example, Edmund Ross was the saving vote in Samuel Johnson’s impeachment. The State Senates then selected their US Senators, and he was selected by the Tennessee legislature for the express purpose of getting Johnson out. He even campaigned on the platform to impeach Johnson, but when it all came out he realized, “here was not an impeachable offense.” He said, “I look down into my political grave.” He thought it was just political hatred of Johnson and he said that to the last day, even though he had a possibility of becoming a Presidential candidate himself. On the other hand, if you don’t pay attention to your constituents, because it’s part of your duty, you will have to pay the price. There’s a fine balance that has to be struck. Balances are never struck exactly, but one has to keep that balance in mind at all times.

Daniel Webster, when speaking of the Missouri Compromise, said, “I speak to you today not as a Massachusetts Man, nor a Northern man, but as an American about issues that transcend one’s parochial issues.” Those who are willing to vote their conscience in the legislature are the Statesmen.

Just as an aside, Steven Douglas and just about everyone thought the Missouri Compromise of 1850 settled the slavery question. No slavery above the Mason Dixon line; slavery below it. Then the Kansas-Nebraska Act, which allowed those two states to decide on the basis of popular sovereignty, really is what lit the fires that finally flamed into the Civil War. It re-opened that question and actually brought Lincoln back into politics again because he was so opposed to state sovereignty on an issue that everybody thought had been settled.

Peter: Now Kansas and Nebraska are west of the Mississippi and north of the Mason Dixon line. They were threatening to permit slavery.

Gil: Yes. You see, the South thought the Missouri Compromise was OK with the present state structure because there were pretty much an even number of state senators on both sides of the line. However, if Kansas and Nebraska came in as free states then there would be a potential for more anti-slavery opinion, and there would be a possibility of the South losing in the national legislature. So this was a way Steven Douglas thought would appease everyone. Instead, it just boiled up.

What happened was that there was a race to Kansas and Nebraska by slave-state and free-state people. The first legislature in Kansas actually voted for slavery. That was then upset by more newcomers. Kansas became known as Bleeding Kansas because there was warfare on the prairie.

Helen: Conflict always seems to exist in a democracy.

Peter: I take it that example shows one of the weaknesses in the system?

Gil: Any system constructed by man has flaws because we are not the Almighty and infinitely wise. We have our own egos, philosophies, personalities. Slavery, however, was an issue that sometime had to be resolved. Its abolition was embedded in the Founding of our nation, recognized in our Constitution. Slavery was in some sense a poison in the body politic. It eventually came to the differences in the regions; economically for instance, chattel slavery provided labor in the South, while the North was becoming industrialized.

It’s why Lincoln, in issuing the Emancipation Proclamation, was much criticized because there was no high, lofty phrase in it; it did not bring freedom to any existing slave because it only established it in territories already under the control of the Federal Government. Thus, some people say it is not a great document. Those people are wrong.

Peter: So, let’s clarify this. The Emancipation Proclamation was more like a statement of principle?

Gil: It was enacted during the Civil War, after Lincoln got his first victory at Antietam. It was also a way to keep Britain from coming into the war on the side of the South, since there was so much anti-slavery sentiment in Britain. But the true genius of it was put forth by Lincoln who was a man of principled cleverness. Lincoln did not believe he had the power to abolish slavery. Instead he premised his plan on his position as Commander in Chief and on the basis of military necessity. He said that in order to achieve victory this was a necessity that was required. At other times he certainly spoke about the immorality of slavery, but knew he couldn’t win on that basis.

The genius was that every place the Union forces liberated, they brought freedom with them for the slaves. In addition to saving the Union it gave Union troops an additional moral cause to fight for.

An example… early in the war there were slaves who got to Union lines and the Union Generals would declare them free. Lincoln rescinded their orders because, legally, in the South, slaves were property. Only after they won the territory could the Union seize the “contraband”, or slaves who were considered property, and then set them free. He couldn’t merely abolish the law.

Helen: As a morale booster, one of the stanzas in the Battle Hymn of the Republic speaks of making men free.

Mine eyes have seen the glory of the coming of the Lord:
He is trampling out the vintage where the grapes of wrath are stored;
He hath loosed the fateful lightning of His terrible swift sword:
His truth is marching on.

In the beauty of the lilies Christ was born across the sea,
With a glory in his bosom that transfigures you and me:
As he died to make men holy, let us die to make men free,
While God is marching on.

Gil: It was written by Harriet Beecher Stowe, whose father was a great abolitionist preacher. The largest military review on the North American continent was a review of General McClellan’s 50,000 man army right here at Bailey’s Crossroads in Falls Church, Virginia. Of course, Lincoln came out to see it, although it looked alot different then, and she was in the Willard Hotel when a number of the troops came back and that might have inspired her. Ironically, she was a Unitarian, and yet the whole thing is very religious. There are those who wanted to soften the song and changed “let us die” to “let us fight” to make men free. I personally enjoy the original as she wrote it.

Helen: It’s a precedent for America. We’ve been doing it all over the world all through our history, especially the 20th century.

Gil: We have Americans today in a cemetery of about 5 million graves at Najaf, Iraq, fighting gravestone to gravestone, risking their lives for others. We’re doing that for a country where we have no historical past; with no relatives, if you will.

Helen: You were talking about the Roman Republic and now America. What historical precedent is there, if any, for the Constitution and Bill of Rights?

Gil: Let’s talk about the Republic first. A republic does not have to be a tripartite government like we have, where we parcel out sovereignty. It could be the President and his retinue, in which case he would become an elected representative. That’s pretty close to a totalitarian government, even though it is elected.

Or you could have one where the President has very little power and the legislature is very powerful and even the courts are subservient to the legislature. But the idea of a three-branch government, where the power is divided, is from Montesquieu and his political writing. It was a stroke of genius to include that in ours, because they were fearful of too much power in one branch. It’s our checks and balances. Our history from England was really the King controlling the judicial system. And that model prevailed on all of our states with the exception of Utah which has a bi-cameral legislature. Even their legislature is divided between a popular vote and those chosen by the Senate. The idea being that the State Senate will be less influenced by popular passions of the day.

The senate has changed now and are being elected, but it did another thing. The big states wanted their largeness felt. They wanted to play a heavier role in national government and felt they were entitled to it because they put in more money and had more people. In essence they wanted unequal representation in the national assembly. The national compromise was that we have two houses. Each state gets the two Senate votes, no matter how large you are, and representation of the size of the population is reflected in the number of congressman from each state. Another brilliant stoke to get this Constitution passed.

Another point of contention was the President, “strong executive or weak executive?” Under the Articles of Confederation, the states were superior to the national government at that time.

Peter: That seems consistent with the idea that sovereignty rests with the individual citizen.

Gil: Also, the fights between the Federalists and the Anti-Federalists were about where the national government should be stronger than the state governments. Anti-Federalists felt power should reside in many smaller units rather than one big unit which could crush the will of the people within the states. The Bill of Rights accomplished it. Without the Bill of Rights we wouldn’t have had our Constitution. It took years to ratify the Constitution and it was finally ratified only with the promise that there would be an enumeration of rights that we’ve already had experience with. For instance, the colonists had problems with quartering troops, or were persecuted for their religious beliefs; they knew they didn’t want to be locked up without some judicial process or taken away from the place where they lived for a trial They wanted the right to counsel and freedom of the press. They had experience with all these during the colonial days and wanted to be sure these rights were enshrined in our Bill of Rights. So the Bill of Rights is an exceedingly important part of our Constitution.

They are also more litigated than any other part of the Constitution. The Constitution, particularly the Bill of Rights, is alive every day in America’s courtrooms. We did not enshrine these high-minded values and then ignore them. Some of the early decisions by our Supreme Court said we have the right to review an act of Congress to see if it meets Constitutional muster. We have a right to declare a law “un-constitutional.” We have the right to not merely declare an act of Congress unconstitutional if it doesn’t meet the test, but we also have the right to determine if Executive Branch officials have gone beyond the bounds of the Constitution in the exercise of their power.

If you go into someone’s house without a warrant, or if the warrant doesn’t have sufficient facts to establish probable cause to have the place searched for some particular type of contraband or evidence of the crime, then it’s not valid. These are the so-called “technicalities” that can get evidence suppressed for an otherwise guilty person. Some people say justice is not served when this happens. Well, that’s not correct. Justice is served when the Constitution puts limits on the power of the Executive to deal with us Americans individually.

Let me give you an example. Someone gets a warrant saying there are drugs in 1524 Main Street. They may have probable cause; maybe they have an informant, etc. So they go to search, but instead of going into 1524 they make a mistake and go into 1526! And what do they find? a whole bunch of drugs sitting out there on the counter and people snorting up cocaine. Well, that evidence must be suppressed because there was no authority for them to go into that home. The only way to validate the guarantees of the Constitution to the people and make sure the police pay attention to it is to give a consequence to its violation. That’s why we have better and better trained police who study this stuff and they are careful. That’s why the evidence obtained and “its fruits” are protected.

Helen: You said the Bill of Rights lives in our courts every day. Is there a difference between what you’re saying and what others refer to as the “living constitution”?

Gil: What I mean is that our Constitution lives and breathes and has a day to day affect on our lives. In the Soviet Union they had a very high-minded and high-sounding Constitution which was completely ignored. People could be sent to the Gulag without any due process whatsoever. Here the courts and, frankly, the executive branch, have to pay attention to it. However, when Congress passes a statute they ought to look at it from the Constitutional point of view. Let’s take the Patriot Act; if there were provisions in there that they thought were offensive to the Constitution, then the Congressmen or Senators who felt that way had an obligation not to support those provisions.

Let’s take another example; the McCain/Feingold Bill is a document offensive to the Constitution, in my opinion. The Supreme Court which is the final arbiter of the Constitution says it is not. Congress and the President signed it but I’m convinced the President signed it because he was sure it wouldn’t pass and he didn’t want to be seen as someone who opposed the popular will which wanted to eliminate soft money from politics.

Well, now they’re faced with a mess. It’s always a mess in the practical effect, because money is always going to find a way to influence. Secondly, to say that certain groups can’t criticize or place ads within a certain time period before elections is shutting down debate.

Peter: Some people say that’s evidence of the “living Constitution”.

Gil: OK, now I know what you mean by that phrase; an “evolving Constitution.” Back in the 1930′s there was a school of thought that said “the law is what judges say it is.” They say it’s unrealistic to think the law is different than what the judges say because, in effect, they have pronounced what the law is. You see it’s not helpful in analysis, it’s only helpful as a statement that following a court’s opinion of what the law is, it’s the final court that has the jurisdiction to enter that judgment.

For a court to take the position that I could decide any way I want to (which is the arbitrary way of doing it) is not democratic as far as our Constitution goes. A judge should decide on neutral principles; not according to what he or she believes, but rather what does that person think is the Constitutional requirement. Plus, when interpreting a statute one must give correct meaning to the statute, just as you have to give correct meaning to a Constitutional provision.

Now, you could decide it incorrectly and everyone has to obey it. Roe v Wade was a perfect example. The Constitution provides very flimsy support for Roe v Wade.

It was decided by a five-to-four decision, but it might as well have been nine to nothing. It has the same effect on the citizenry. I’m not speaking about whether Roe v Wade is good or bad policy, but it’s very bad Constitutional law. There is no “right of privacy” enunciated in the Constitution. There are things that help people keep their affairs private, but as a separate right in the Constitution, there is none. Maybe there should be, I don’t know, but it’s not there. Let’s take the second amendment. While all the other parts of the Bill of Rights are interpreted as meaning rights for the individual, the idea that the second amendment regards the militia only is an absurdity.

But that’s the way the court interpreted it, and it’s thought now to be wrong, even by Lawrence Tribe – a very liberal fellow, by the way – in his third edition on Constitutional Law. He interprets it as giving individuals the right to bear arms. But that’s a good example. If he were on the court 20 years ago, he would have interpreted the second amendment one way and now he would interpret it another. So the Constitution as it sits out there is subject to the belief as to what it means that is arguable by one side or another. That doesn’t mean the Founders didn’t have an idea about it, but you do find, when you’re talking about this ‘living’ or ‘evolving’ Constitution, that there are circumstances which the Founders wouldn’t have had in mind because they didn’t have cars or planes or the internet. So you still have to fit it into what they had in mind as to the meaning of the policy behind a provision of the Constitution. For example, free speech. We’re not supposed to be punished for what we say but that can come into conflict with the public safety question. Oliver Wendell Holmes said free speech doesn’t give you the right to cry “Fire!” in a crowded theater if there isn’t a fire.

Peter: That relates to the concept of freedom of speech having ‘evolved’ to mean freedom of expression.

Helen: Yes, on one side it’s OK to burn the American flag, but then it’s not OK for the KKK to burn crosses. Burning crosses is supposed to be hate speech. Whether you agree with it or not is not the issue, but does the freedom to do so extend to all expressions?

Gil: Let me give you an example. This is hypothetical of course. Two people are before me, one white and one black and I hate the black person because he’s black. Now I don’t have any objection to the white guy but he might prevent me from killing the black guy. So, I kill them both. Now, I didn’t hate the white guy for any racial reason, but my punishment will be heavier for killing the black guy because it will be considered a hate crime, even though my act to both of them is the same. So, in a sense, I’m punished for my evil thought.

Helen: Isn’t limiting thought more oppressive than limiting speech?

Gil: I think it’s particularly onerous for a legislature to legislate that there should be a higher degree of penalty attached to hate crimes. Hate crimes usually are defined around “feelings” toward groups of people. For instance, “I hate immigrants” or whoever… It is not a nice thing to think, but it can evolve into other things. For instance, what if I hate mole people and so the legislature adds mole people to the protected classes that I’m not allowed to think negatively about. Now I will say that within statutory maximums, judges can have some discretion. It’s not so much the hate, but a vile and evil intent is taken into account by judges. However, the judges will take into account a lot of different factors based on the individual case, but to legislate that one murder is worse than another based on what the perpetrator may have been thinking at the time is, in my view, not within the Constitution.

Helen: It seems we’re trying to legislate good manners. Of course, it’s rude and bad manners to exhibit hate speech, but that’s a private, individual matter and not one for the legislature. Once it’s law, it evolves into “we don’t have any enemies anymore” or “everyone is just misunderstood.” It dulls the barriers from our true enemies, especially in this war on terror. Without enemies the world just becomes a fairy tale.

Gil: It’s fair to say that radical fundamentalist Muslims are mostly Middle Eastern. If we’re going to use our resources wisely we probably shouldn’t be looking at old black women when we’re looking for terrorists, but rather narrow it down to people from the Middle East. Of course, they would complain that this is targeting a certain group, or profiling. However, we do that all the time for ordinary crimes. If it were a white person then we don’t look at the Hispanics or Asians.

Peter: If it were a red car or a blue car, we would eliminate all the other colors.

Gil: Now it is true that there has been some discrimination in the enforcement of law in our country. You know, that old thing about “driving while black.” There are still some cops who stop people because they belonged to a group that they felt was more likely to be a criminal. That’s offensive and that’s why it’s a good thing that the Virginia legislature stopped the cops from pulling someone over just because their seat belt wasn’t fastened. They could charge a guy if they stopped him for something else, but otherwise it gave the police too much latitude.

Helen: Let’s get back to rights guaranteed by the Constitution. We see the European Union coming up with a Constitution that’s volumes in length. What do you think about the laundry list of their rights versus ours?

Gil: First of all the American Constitution and the Bill of Rights is tight and spare language. It wasn’t meant to cover the particulars of every situation. It was meant to give general principles that could then be applied to most every situation. When you start getting into the details of things that are not covered, well… the human mind cannot possibly think of how every individual will respond to a certain situation.

Freedom… Now, if you notice in the Constitution, there is a clause saying that Congress shall make no law restricting the free practice of religion or freedom of assembly and so on. Now that has been applied to the states as a fundamental right. Not all of the Bill of Rights have been applied to the states. I think it’s good that we have a Constitution that is broad in its language because then it’s more sweeping in its application.

Peter: In its way the Constitution enumerates the powers of federal government and anything not enumerated falls to the states or to individual citizens. There is only a short list of rights enumerated in the first 10 Amendments, or the so-called Bill of Rights.

Gil: And the point there is… well, let’s go back to the European Union. Does that tome enumerate rights between citizens or between citizens and government? Because here, it’s the rights of the citizens versus the government. Here, unless it’s by statute made illegal, as it has been, I can tape our conversation and there is no crime in that. But it’s not “unconstitutional” for me to break into someone’s house as a private citizen. However, I can be criminally charged with trespass or burglary, but it’s not the application of the Constitution that gets me, it’s the authority of a statute that has been passed. And the Constitution grants the government the authority to pass such statutes. It is the government that is constrained by the rights of the people.

So the definition of freedom and two central applications of it are the right of people to choose their leaders and the right, to the extent possible, to be left alone by the government. That’s the essence of freedom.

Also within a structure, of course, that allows people to live out their lives in a way which they wish to live them out. Except in certain cases where chaos should be avoided, such as traffic lights at intersections. You can’t have everyone going through whenever they want.

Helen:

We do have to give up some rights so that we don’t live in chaos. There was a story you told us last week about trampling down the law to attack the devil. Can you relate that to us again?

Gil: This is from A Man for All Seasons, a play by Robert Bolt. It’s about Sir Thomas More who is the Lord Chancellor of England and he is giving counsel to a young nobleman who is very passionate about striking a blow against anything that was evil. He was asked by Moore, “would you break a law of England to strike an evil?” The nobleman replied, “I’d break every law to get Satan”. More replied, “as you have pursued Satan and he turns around on you, where will you hide, all the laws being flat?”

A protection against evil, in a civil society, is a structure of ordered liberty. We need to be protected from being falsely accused, we need a structured system that is most likely to acquit us if we are accused but innocent. We are protected against the Executive power by our Bill of Rights, where we can interpose a jury between the Executive and the person. The respect for the law is very important for the preservation of our liberty. Not that we should ignore the excesses of judges who might go overboard with their own views and make the law into what they think it ought to be.

Peter: Well, we respect the law; we don’t respect what they’re doing with the law.

Gil: I think that’s a good way of putting it. We do have some checks over time regarding that. Federal Judges are appointed by the national legislature and state judges are appointed either by the legislature, as in Virginia, or by an election. And if the judges get so far out of hand, there are ways to remedy it and we see it now in the Senate with the Democrats opposing the Republican appointees The Democrats are being obstructionist because they don’t like the viewpoints of the appointees. But you also see that vice-versa.

By the way, every law, no matter how seemingly innocuous or valueless in its content, is always an expression of morality, because it’s someone’s expression of what someone thinks the law ought to be. If you use the word “ought” you are talking about value and making a judgment.

Helen: Let’s move on to equality before the law. We know you believe in this very sincerely, but there still must have been something difficult for you when you decided to take on the Paula Jones case. You were defending someone who was filing suit against an incumbent President of the United States. Tell us what went through your mind please.

Gil: I thought these things… and in no order of priority. One, I was her last chance to get her case into court because every lawyer who had considered it had rejected it; some because they were in big firms with both Republican and Democrat clients, or some because they were in little firms who didn’t have the resources to handle such a difficult, expensive battle. Second, just how I view myself; I like a challenge and I don’t take cases only on the basis of usual considerations, either money or fame.

In this case, there had also been some talk that the President was going to say he was not amenable to such a suit while he’s President. In other words, he has some “king’s ex” or immunity. That’s a legal challenge that, if he raised it, which in fact he did, drives such a case to fundamental questions of the Constitution. There was no precedent directly on point that said one way or the other that a President is immune in his personal life from a suit of wrongdoing.

Peter: So, yours would be the first tracks in the snow, as it were?

Gil: That’s correct. I thought it would be enjoyable. We would be up against power and I like that too. I’ve always liked to be the David against Goliath and I liked that Bob Bennett would be in the case. He’s a very high profile guy. At first we were perceived – and people talked about it – that we were just totally out-classed by Bob Bennett. Now, he’s a good lawyer and he’s a friend. In fact, we became closer friends during the course of litigation. But he was a fearsome adversary. That’s his job.

I even wrote him a letter one Christmas about his professionalism in the way he represented Dan Rostenkowski. Rostenkowski said he didn’t give Bennett the authority to negotiate a deal and fired him. Bennett held his tongue so that Rostenkowski wouldn’t be vilified. So I told Bennett in that letter that there was no doubt in my mind that Rostenkowski had given him permission, and that Bennett acted in line with the highest standards of our profession.

Helen: We pulled up a very lengthy story on the internet about the Paula Jones case.

Gil: That would be Stuart Taylor’s.

Helen: He relates an incident where you called Bennett and realized the President was also in the room during your phone conversation. How do you balance the respect for the office of the Presidency with the person of the President?

Gil: The office of the Presidency has to be honored and respected. But, just as I told the Supreme Court, the President would have to obey the orders of the court. They asked, “what if he doesn’t?” I told them there are always contempt powers. You can’t lock him up and take him away from his public job, or he might suffer a default and, if he thinks he’s right, then let the appellate court decide if he is or isn’t. So, I also said you have to respect the ability of the courts too, to handle such matters in a way that was both sensitive to the needs of the people and not divert the attention of the President from the duties of his office.

At the beginning the President threw a blanket over the case because he said he was tormented so much that his mind couldn’t focus on his public job. Then there are some remedies; you can continue the case; you can get it in the can for discovery so the facts don’t get lost. After all, memories fade, documents get lost and people die.

Helen: But why should the office of the President have that special privilege to be able to say, “I’ll put it on hold”? There truly is a delicate balance here.

Gil: There is. There was a case involving President Nixon that went to the Supreme Court. Nixon spawned alot of litigation while and after he was in office. The first case was in the Fitzgerald v Nixon case where Fitzgerald blew the whistle on some wrongdoing at the Pentagon. The way Nixon handled that was to fire everyone at that guy’s level – 12 people – and that got him too. Not a nice act to do. But the issue became, can you sue the President over taking an act just to get rid of somebody. There was little doubt in my mind that Nixon actually did it.

The Supreme Court said you cannot sue a President for any act that comes within the outer perimeter of their official duty. There is a good, solid reason for it. President’s should not have to be thinking how his actions affect individual people who might be aggrieved and pick his pocket because they don’t like what he did. We want a president free to act within the authority which he has within the outer perimeter of his “official” duty.

Well, it wasn’t an official duty of the Governor of Arkansas to expose himself to a young woman and ask her to kiss it. That was not in the outer perimeter of the Governor’s duty and certainly not of the President of the United States. So the issue was, yes, I respect the office of the President but the person of the President who wants to hide behind the chair of Washington and Lincoln and Jefferson and Theodore Roosevelt and Harry Truman to protect himself because of his personal wrongdoing, I don’t respect that. Nor do I think it makes him immune. Frankly, in the instance where we sued him, of course he wanted to be immune. But suppose he wanted to borrow money on a house and he’s President or running for President and the lender says, “Wait a minute. If you default, I can’t sue you because you’re immune from suit while you’re President.” So it hurts the President, in a way, and prevents him from being like everybody else. Let’s remember, the President is “Mister” not “your Majesty.” Mister or Miss or Mrs. is a title we all have. The President is a citizen like everybody else.

I told the Supreme Court – and I think this the heart of the case – “The President has confused his person and his office.” The office of the Presidency has privileges and immunities, but the person of the President has no privilege or immunity beyond that of any other citizen of the United States.

Helen: Is going to the Supreme Court much different than going to State or Federal Court?

Gil: Very few people get to go before the Supreme Court. It’s the only case both Bob Bennett and I had before it. In most cases you have to ask the court to accept your case. They don’t take many cases, out of the thousands and thousands of petitions they receive. Now some cases they have to take; say disputes between states. The President of the United States is the one who took his case to the Supreme Court after he lost at trial. That judge told him he was not immune. So he appealed to the Supreme Court; it was granted, and we had the argument.

Helen: So tell our readers the outcome in case they don’t know.

Gil: We won! Nine to nothing. Every justice, no matter who appointed them, no matter what their philosophy, said the President is responsible to justice like every other citizen. And Justice Stevens wrote the opinion and he’s one of the most liberal of the Justices.

Peter: Well done! Thank you and the nation thanks you.

Gil: Well, I think this case led directly to impeachment. I think it lead to G. W. Bush being President of the United States, because he never failed to say that he would restore dignity and honor to the office of the President. Within a close election there are other factors, but without opening the door to impeachment, as my trial did, it might have been a closer or losing election for President Bush.

Even Bob Woodward says in his book that being sued opened up the way for all the other issues. That was not my intention, but when you let litigation run you have unintended consequences. Justice Stevens also said he doesn’t regret his decision, because it was not the court that did anything to the President, it was his actions.

I think the case was fundamentally important. That case says something about who we are as a people. I always thought we were all equal before the law and the right to petition our government in the courts is open to all comers.

The decision of my case stands for those principles. It’s not only the President; every official in this country is accountable. No one can hide behind their office.

Peter: You powerfully re-affirmed that principle in America, compared, say, to the United Nations, where they have the International Criminal Court with some 18 judges in the judicial stratosphere with no apparent connection with the ground.

Gil: We have not ceded our sovereignty to an international body, we also regard highly the rights of individuals over the group. We don’t have group rights… although some groups seem to think so.

Peter: There is a growing power in identity politics and “protected classes.” There are 14 of them now in the District of Columbia. But it’s not inevitable that this trend will continue to grow.

Helen: We like our representatives to be accountable to us, yet we have the Supreme Court which is only accountable to the Constitution.

Gil: Well, we do have the remedy of impeachment for Federal Judges. However, most serve a lifetime term so we have to be very careful in choosing them. They sit on the top of a mountain; it may not be a big mountain, but it’s all theirs. And the people who have to come to the foot of that mountain, because that’s the forum for their issues, and if the Judge is a tyrant, they won’t leave with warm, fuzzy feelings about justice. Now, the Supreme Court… I think they should serve a life term for this reason: the one thing that is a fundamentally good thing about our system of government is the independence of the judiciary. In most countries the thumb of the Executive Branch is on the Judiciary. So if private citizens seek remedy against each other, or if the government brings suit against you, you’re in the government court and the government could pretty much tell the court what to do, implicitly or explicitly. So that’s one thing we have here that is of value to us.

But on the other hand, with that freedom comes the potential for abuse. People in a lifetime job, if they are hard-working, it’s not a cushy job at all. However, the trappings of that office are very nice; people bow and scrape and it’s always “your honor” and “most respectfully, sir,” and they get law clerks to do alot of their work and they have a great deal of respect in the community and they have alot of power over those cases which are brought before them. So you have to choose someone who is both philosophically sound, not on individual issues so much as on a method of deciding cases. That they respect the Constitution and don’t think it’s an ‘evolving’ document. Only evolving in the sense that it may have application to some new conditions, but not a change fundamentally in what the Founders were after. Because it’s a restriction of power really, an enumeration of powers and things that Congress can’t do. So it’s not to be an expansion of powers for Congress. There is a big debate in the Supreme Court right now, between Stevens and Scalia. Stevens likes the Commerce clause as a hook upon which to justify just about any Federal statute.

Peter: That’s the only way that Congress got to expand its power so far over the states.

Gil: Sure, just about anything affects commerce. Let’s take most gun control legislation; most of it is based on the inter-state commerce clause, that the Federal government can regulate the commerce among the states. Unfortunately, the use of the commerce clause has become such an established precedent, that it could be thought of as a ‘conservative’ issue in a way, a traditional issue.

Helen: So what can you say to the average citizen so they can get more involved in their destiny, their government.

Gil: There is opportunity for citizens to be involved through making the ballots by joining a party and becoming active in that party; that person’s influence exceeds those who just go to the polls and pull a lever. They also have the opportunity to be active in private organizations; in churches, in their local community, in charity work, in business organizations that have points of view they share. There are people who go into schools and talk about what we’re talking about here today; the structure of our government. There are ways to affect your community which are not limited simply by your participation in politics.

Now the right to vote is a precious one. It’s almost a sacred duty to honor those who purchased that right for us and to go to the sanctity of that polling booth and cast a vote. Freedom is not free. But in doing so – even though someone might say, “I’m one of thousands or millions and what can my vote matter?” – there is an obligation, when one casts a vote, to become aware of the issues and the candidates and the policies that are being promoted so that the vote can be an intelligent one.

I’m a Republican so I would tend to vote for Republicans because the basic principles of the party are those that I subscribe to. Limited government and low taxes are two examples of that. But I also think that someone who believes in the principles of the Democratic party should also be involved. It’s a duty of citizenship. These are the two great parties of the free world.

Some people say they are Independent and would vote for the man or the woman. I don’t respect that very much because it means you are really voting for what that person supposedly believes, or tells you they believe in, not for the organization that helped him or her run.

Peter: You’re voting for the hood ornament rather than which way the car is going.

Gil: Another thing about voting, you find great majorities and turnout in totalitarian countries; they either make the public go, or they count them whether they go to the polls or not.

Peter: I remember Saddam got 100% the last time he was ‘elected’!

Gil: Sincerely, I wish the turnout was greater, but I don’t bemoan the fact that people select themselves out of voting. I’d rather a person not vote if they haven’t become aware enough of the issues and the candidates to form an intelligent decision. I see ads saying, “please be sure to vote.” I would add “be sure to become aware of the issues and then vote.” One of the driving forces of our educational system and the way we value it is that it should teach people the way to acquire enough knowledge to be a good citizen in a free country. If you can’t read, you can’t figure out what’s going on in the newspaper, or read history. (or read this interview, say Peter and Helen). You can get sound-bites from the TV, but I don’t think any of us think we get an in-depth analysis of anything from the TV.

That was one of the rationales for the development of the public school system, and compulsory education. The public school system has been a great engine of our democracy because we don’t “teach the best and shoot the rest.” We believe everyone should have a quality minimum standard of education in order to grasp the opportunity of a free land. If we stand for anything as a nation, we stand for the opportunity of anybody, no matter what their circumstance at birth, to go as far as their abilities and ambition will take them.

Peter: That’s a succinct articulation of the American dream and a perfect summation. We thank you very much.