A stunning irony, so far unnoticed, lurks in a pair of pending Supreme Court cases: Clinton v. Jones, in which the president and his Department of Justice seek to block a sexual harassment lawsuit against him until after he leaves office, and the lesser-known United States v. Lanier.

The irony is that the crude sexual advances of which Bill Clinton stands accused by Paula Corbin Jones would apparently be a federal crime under the Clinton Justice Department’s legal analysis in the case of David Lanier, who was a monstrously lecherous chancery court judge in rural western Tennessee.

Clinton’s alleged conduct would be even more clearly a federal crime under the analysis suggested in amicus briefs filed by leading feminist groups and scholars.

Another irony is that while the Lanier case has become (understandably) a cause celebre in the women’s movement-with every major feminist legal advocacy group in the nation urging reversal of an appeals court decision that threw out Lanier’s convictions-the president’s so-far-successful effort to slam the courthouse door in the face of Paula Jones until the year 2001 has prompted not a whimper of protest from any of them.

Given all this, the rumor in the Supreme Court press room-that the cases may be set for argument the same day, sometime in January-seems almost too delicious to be true.

(For a fuller discussion of the Jones-Clinton case, see "Her Case Against Clinton," in the November issue of The American Lawyer, which I wrote before becoming aware of the parallels presented by the Lanier case.)

The two felony counts and five-misdemeanor counts of which the jury found Lanier guilty involve a range of conduct between 1989 and 1991, some of it far more loathsome and outrageous than anything Jones claims Clinton did. Lanier was convicted of sexually assaulting five women, including three court employees and a job applicant, the latter under circumstances that may well warrant the 25-year prison sentence decreed by the trial judge.

The job applicant testified that on two occasions, weeks apart, the judge had grabbed her, exposed himself, pushed her head down violently, and forced her to perform oral sex, while implicitly threatening her with an adverse ruling in a child custody dispute if she reported his crimes.

While nobody has ever accused Clinton of that kind of conduct, the Clinton Justice Department is now seeking to reinstate all of Lanier’s convictions under a Reconstruction-era civil rights law, 18 U.S.C. §242, including some misdemeanor counts involving conduct hard to distinguish-at least as a matter of law-from the Clinton conduct alleged by Paula Jones.

The similarities begin with one of the lesser charges, as described in Footnote 4 of die Justice Department’s petition for certiorari:

"The [trial] court dismissed Count 9, which alleged that [Lamer had] sexually assaulted a woman in his chambers, when she was meeting with him about her case, by exposing his genitals and urging her to engage in sexual acts with him." The woman testified that Lanier had crudely asked for oral sex.

This allegation-deemed criminal by the Justice Department, if not by the trial judge-is exactly what Jones says then-Gov. Clinton did to her on May 8, 1991.

He did is, she says, during an encounter that began with his sending his state-trooper bodyguard to interrupt her performance of her job-at a state conference at a Little Rock hotel job-where Clinton had given a speech-to summon her to an upstairs suite to meet with Clinton.

According to Jones’ complaint, Clinton first reminded her that he was the boss of her boss; then he "took Jones’s hand and pulled her toward him," prompting her to remove her hand and retreat several feet; then he approached again and "put his hand on plaintiff’s leg and started sliding it toward the hem of plaintiff’s culottes [while] attempting] to kiss Jones on the neck"; and then, after being rebuffed again, he "lowered his trousers and underwear exposing his erect penis and asked Jones to ‘kiss it.’" Rebuffed a third time, he allegedly pulled up his pants and said, "You are smart. Let’s keep this between ourselves."

While Lanier’s Count 9 is not part of the pending appeal, another charge against Lanier, which led to a conviction that Justice is seeking to reinstate, also makes for an interesting comparison. Here’s how Solicitor General Walter Dellinger summarized the evidence on Page 6 of his brief:

"In 1989, [Lanier] assaulted Sandra Sanders, whom he had hired [as a juvenile court officer]. During one of [their weekly] meetings [in his chambers, Lanier] grabbed Sanders’ breast Sanders tried to remove his hand; she then stood up and walked out of his office….Later, after a court session, respondent grabbed Sanders’ buttocks…. He also, at a later meeting, pinned Sanders to the wall and kissed her on the lips. [Later still, she] demand[ed] an apology…. Although [Lanier] apologized, he began to find minor faults with the quality of her work, and eventually he demoted her."

(Lanier did not expose himself to this victim, although he did to others.)

If what David Lanier was convicted of doing to Sandra Sanders was a federal crime, can what Bill Clinton allegedly did to Paula Jones be dismissed as merely a crass sexual overture-not even rising to die level of "sexual harassment"-as feminists and other Clinton supporters have suggested?

The Clinton Justice Department’s amici in the Lanier case suggest even more strongly than does Dellinger’s brief that the sort of conduct of which losses Bias accused Clinton would amount to a federal crime.

Feminist Professor Catharine MacKinnon of the University of Michigan Law School for example, stressed in one brief that "acts of indecent exposure" are federal crimes If done under color of state law.

So, too, she said, are acts involving "unwanted physical sexual contact short of rape or other sexual assault-like… sexual pawing and groping."

MacKinnon added: "He used the power of the state he wielded as a… public employer to gain access to women so he could sexually use them as a man, and then he used that same state power to silence them." (She was talking about Lanier, not Clinton.)

Meanwhile, the NOW Legal Defense and Education Fund, the Women’s Legal Defense Fund, People for the American Way, and 13 other groups suggested in another brief that "aggressively grabbing and squeezing the victims’ breasts and buttocks" under color of state law are federal crimes. The American Civil Liberties Union argued that the same is true of "sexual harassment by government officials" with "power to control employment."

(By the way, the five-year statute of limitations on any federal criminal prosecution based on the Jones-Clinton allegations apparently expired on May 8, 1996.)

The Lanier case raises complex issues of federal criminal jurisdiction and constitutional law. Lanier was never prosecuted by the state, as he should have been; he came from a politically powerful family, had been the local mayor before becoming a judge, and is the brother of the state’s then-district attorney.

The federal prosecution was based on the broad, vague language of 18 U.S.C. §242, a provision that makes it a crime for a state official acting "under color of… law" to deprive another person of "rights… secured by the Constitution." The Justice Department’s theory is that Lanier deprived his victims of their rights to bodily integrity against sexual assault.

The U.S. Court of Appeals for the 6th Circuit produced five separate opinions, with nine judges voting to reverse all the convictions and six dissenting in whole or in part. Chief Judge Gilbert Merritt Jr. wrote for the majority that §242 was such a vague and potentially all-encompassing statute that it must be construed narrowly, and held that it did not cover any of Lanier’s "reprehensible" conduct because the Supreme Court had never recognized a constitutional right to bodily integrity against sexual assault.

In the Supreme Court appeal, the Justice Department and the feminist groups argue that rape and forcible sexual assault by a state official like Lanier, acting under color of law, should be deemed to violate the victims’ constitutional rights, and thus to be crimes under §242.I agree.

But they venture too far down a slippery slope when they seek federal prosecution for acts of sexual harassment that do not rise to the level of forcible assault. It’s a tricky line to draw, but I would draw it in a place that would avoid criminalizing the sort of depraved but not forcible conduct of which Clinton is accused by Jones.

But that’s not where the Clinton Justice Department and its feminist allies want to draw the line-not in the Lanier case, at least.

And it’s interesting to see the president getting a free pass-without even having to answer Paula Jones’ allegations-from Clintonites and feminists who clamor for imprisonment of others accused of similar conduct.