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4.2.12
WC: 191694

I think the President could win if it actually went to trial, but it
won’t go to trial. What I would do if I were his lawyer is to say,
“Look, the dignity of the office precludes the [P]resident from
answering any of these questions. We realize that as a result of not
answering these questions, we will reluctantly, without admitting
anything, have to be sanctioned by having the verdict directed
against us on the merits. We accept that because we can’t answer
the questions and preserve the dignity. And now let’s move on to
the damages, where the focus is not on the [P]resident but on Paula
Jones.” And in that way, he can, in effect, settle the case, even if
the other side doesn’t settle because the damages will be very low,
there won’t be an apology. There’ll be a judgment against him, but
the judgment will be explained on the basis of the dignity of the
presidency. So if the settlement talks fail, that’s what I would
recommend that his lawyers think about. . . .

And the [P]resident has to start asking himself: Is he well advised
here?

The President had three options, but he was aware of only two of them. He knew that he could
litigate and try to win – as he ended up doing. He also knew that he could try to settle the case,
which would have avoided the necessity of testifying at the deposition or trial. A settlement
requires both sides to agree. In the Jones case, the president reportedly offered to pay Jones
$700,000, in order to settle the case. Jones insisted on an apology⁸⁶ and the settlement talks
eventually broke down.

The third option, of which the president was unaware, was to default the Jones case. Every
litigant in a civil case has the right to default – which means, essentially, to settle the case
unilaterally by simply refusing to contest the allegations in the complaint. Consider, for example,
the following hypothetical case: a fired employee of a high tech business sues for $10,000 in back
pay. The business realizes that in order to defend its actions, it would have to reveal commercial
secrets valued at $1,000,000 and take the time of executives which it estimates at being worth
$200,000. It offers to settle the case for the $10,000 that the employee is demanding, but the
angry employee prefers a trial at which he will be publicly vindicated. The company has the right
simply to default, have the judgment entered against it, and have the court order it to the pay the
damages sought by the employee. No stigma is attached to defaulting a case. It does not even
necessarily entail an admission of liability. It represents a practical assessment of the costs and
benefits of litigating and not litigating – just as a settlement does.

Robert Bennett never told President Clinton that he could have defaulted and paid Jones without
making any apology. Perhaps the Lewinsky story would have leaked, but the President would not
have had to dignify a rumor with a response. It was the entirely avoidable decision to have him

_________________
⁸⁶ Paula Jones’ lawyer have subsequently revealed that the Jones lawsuit could have been settled at one point for no
money with just a simple apology from President Clinton which made it clear that Paula Jones did not do anything
wrong in the hotel room.

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