Not-So-Grand Inquests

An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, by Richard A. Posner, Cambridge: Harvard University Press, 276 pages, $24.95

Richard Posner has written a remarkably even-tempered and reasonable book about the impeachment of President Bill Clinton, a welcome contrast to the overheated rhetoric and raw emotions generated by the event itself. If you were to read only one book about the Lewinsky scandal--and really, who would want to read more than one?--this is probably the one to choose. It does not feature the salacious details or fiery calls to arms of the early scandal books, but it does offer a sober second look at the misconduct and cover-up that led to only the second presidential impeachment in American history.

Posner is both a natural and an odd choice to write such a book. In contrast to most of the instant experts who populated the television studios last year, Posner is well positioned to offer some much-needed wisdom on the scandal. A longtime member of the faculty at the University of Chicago School of Law, where he is currently is a senior lecturer, he is an extraordinarily prolific scholar and a leader in the law and economics movement that has revolutionized the law schools and public policy. Not only has he been a well-known advocate of a pragmatic approach to constitutional interpretation and law, but his many books include Sex and Reason. Posner is also the chief judge of the U.S. Court of Appeals for the 7th Circuit. He has kept more than a hand in the theoretical debates of legal academia since Ronald Reagan appointed him to the bench in 1981.

To be sure, public commentary on such a highly politicized and recent event as the Clinton impeachment poses some awkwardness for a sitting federal judge. Posner recognizes the ethical concerns, but he argues that the impeachment will not produce any litigation that he might hear in his judicial capacity and that the criticisms of the president have been sufficiently bipartisan to allow a judge to comment on the case without seeming overly political.

Then, too, the ways in which participants in and commentators on the impeachment inquiry misrepresented legal reasoning and the criminal justice process may impose a special obligation on a judge to speak out on this topic. A senior and respected judge has a responsibility to reaffirm basic legal principles in the aftermath of such a legal farce. We are better off for his contribution to the public dialogue.

If Posner pulled any punches in deference to his judicial position, his blows are still plenty sharp. Undoubtedly, his harshest criticism is directed at the president. Posner finds Clinton's actions in the Lewinsky affair generally troubling. But the most important contribution of the book is its careful assessment of Clinton's legal culpability as a result of his efforts to cover up the affair, and in particular to hide it from Paula Jones' attorneys and Kenneth Starr's grand jury. Posner patiently wades through what is incontestably known and what can be reasonably inferred about Clinton's actions and compares these facts to his sworn testimony in various legal actions (including his response to the congressional committee considering his impeachment). The president's crimes are not the worst one can imagine, but they are plenty bad.

If Clinton were the president of a university or a corporation rather than the president of the United States, Posner suggests, his conduct would have earned him "a prison sentence of 30 to 37 months." (One wonders how the impeachment would have progressed if this basic point had been emphasized more.) Posner is precise and persuasive in puncturing Clinton's lies and his defenders' obfuscations, and his demonstration that perjuries such as the president's are both readily proven and regularly punished in the criminal courts is an important corrective to the legal confusions fostered by the impeachment debates.

Posner is equally direct in assessing how Clinton destroyed his presidential credibility by so believably feigning finger-wagging indignation as he glared through the camera lens into the living rooms of the American public and baldly lied to them out of base self-interest, even aside from his evident willingness to take an oath to tell the truth to a criminal grand jury and then proceed to offer testimony composed of clear fabrications and obviously incredible evasions of the truth. To Posner, the president's inability to order up military strikes against Iraq and alleged terrorist targets without provoking all-too-believable charges of Wag the Dog-style political misdirection is the most telling indication of how Clinton had abused and harmed his office and justified an impeachment effort against him. His comparison of the president's repeated lies to the totalitarian "exhibition of power by forcing their subjects to express agreements with lies that no one believes" is particularly cutting, not only to Clinton but also to a political culture in which holding on to government power is the only objective.

Posner's critical eye falls on plenty of others in addition to the president, however. He has no time for what he calls "Clinton-haters," whose ranks he suspects include Linda Tripp, and who have irrationally accused Clinton of every conceivable charge, up to and including serial murder. He shows great professional disappointment in the attorneys on both sides of the Clinton case. He thinks the office of the independent counsel made a number of political and legal mistakes, though he ultimately defends Starr against most personal and professional attacks.

Posner does not hesitate to criticize the panel of his fellow appellate court judges that was appointed to monitor the independent counsel for not showing better political judgment in handling the case. He offers a lengthy critique of the justices of the Supreme Court, not only for getting the answer wrong in the cases that broadly upheld the independent counsel statute in the first place and that allowed Paula Jones' civil suit to move forward while the president was still in office but also for being naive about political reality and obsessed with legal technicalities. Ironically for a judge who has spent most of his career either in academia or on the bench, he calls for the appointment of more justices with prior political experience.

Posner faults the Republicans' handling of the impeachment, from the partisan procedural decisions to the hasty release of the Starr material to the disorderly management of the Senate trial. He eviscerates his fellow academics for their shallow and partisan commentary during the impeachment debate. About the only group for which he offers unalloyed praise are the reporters who investigated the Clinton story and basically got it right. (Posner is a bit too sweeping in praising "the media," for he ignores the mindless jabber of the political pundits and cable talk show hosts who dominated TV coverage of the scandal.)

Posner's early chapters, succinctly laying out "the facts" and the "violations of the law" in the Clinton case and analyzing the conduct and report of the prosecutors, are worth the price of the book by themselves. Later chapters, examining the issues of public and private morality raised by Clinton's conduct and the ways in which the impeachment inquiry played into "the kulturkampf," are also insightful. Posner brings an experience and clarity to the analysis of the charges against Clinton that is refreshing. Perhaps more surprisingly, he also brings a useful perspective to the moral issues surrounding the Clinton case.

Posner castigates social conservatives such as William Bennett for thinking that the president should stand as a moral exemplar or that his behavior or acquittal provides evidence of moral decline in America. Posner thinks Clinton's conduct showed important character flaws that damaged his ability to lead the nation. But he argues that, contrary to the aspirations of the religious right's cultural mandarins, "it would hardly be appropriate to punish Clinton not for violating the prevailing moral code of modern American society but for failing to comply with what a minority of Americans considered a better moral code."

The Republicans nonetheless missed an opportunity, Posner writes, for "it is on the ground of disrespect for his office and for decency in the conduct of government that the most powerful case for impeachment and conviction could have been pitched. But neither Starr nor the Republican majority of the House Judiciary Committee attempted to do this." Posner does not adhere to a narrow definition of impeachable offenses, and he does not hedge on the criminal case against the president. But despite all the talk of a holy war against Clinton, he is quite right to observe that the Republicans failed to offer a coherent image of the presidency and its responsibilities or to explain exactly how Clinton's misconduct had damaged the constitutional system. The Republicans were all too willing to meet the Democrats on their favored terrain of Clinton's "private" conduct and the criminal law. In doing so, they sacrificed both constitutional principle and political advantage.

Despite its virtues, An Affair of State does provoke some regrets. Posner wrote it on the fly, between the start of the House impeachment inquiry and the conclusion of the Senate trial. Although extremely readable and topical, the book is quite concerned with the debates of the moment. The author too often seems to be responding to that day's op-ed page. These are debates that Posner usually wins, but a year later the reader might wish for a bit more selectivity.

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