History

Not-So-Grand Inquests

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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.

Posner never really provides a detailed analysis of the impeachment power or a firm conclusion on whether Clinton should have been impeached or removed. Given Posner's scholarly credentials, this in particular seems like a missed opportunity. Posner's conclusions about various constitutional problems raised by recent events, from the scope of the impeachment power to whether a president can pardon himself, are provocative. But the arguments are thin and the scholarship limited. Readers will learn a great deal about the impeachment and trial of President Clinton, but those interested in the history or proper scope of the impeachment power will have to look elsewhere.

Beyond a desire to explore the inter-section of sex, morality, politics, and law in the Clinton impeachment, Posner has a couple of axes to grind, and these do not provide the book's better moments. There is a prominent utilitarian streak in Posner's approach to law and economics. He has edited a volume of writings by the great judicial pragmatist, Oliver Wendell Holmes, and written a number of essays urging a more pragmatic approach to the law. As part of this offensive, Posner has been an aggressive critic of the influence of moral philosophy in contemporary jurisprudence and legal theory. The scope of Posner's indictment of constitutional theory is broad: He is as dismissive of the historical orientation of a Robert Bork or Antonin Scalia or the formalist concern with text and precedent of a William Rehnquist as the moral philosophizing of a Ronald Dworkin. In his analysis of the impeachment power or the constitutionality of the independent counsel statute, Posner is quick to dismiss original intent and legal precedent as indeterminate and irrelevant and to embark on his own political and social analysis of what really "works" and the "practical effect" of different governing arrangements. The results are rather less enlightening than his deft application of the case law regarding perjury and obstruction of justice to the president's actions.

Posner is quite skeptical of the ability of "academic practitioners of `soft' subjects in the humanities and social sciences–subjects such as moral and political philosophy, history, and law" to help resolve issues of public policy. In his view, those academics and public intellectuals who did speak out on the Clinton affair had "rather little to say that was worthwhile." Here Posner seems more than a little unfair in his selection of targets. He gives inordinate attention to NYU law professor Ronald Dworkin's claim that the impeachment was a "kind of coup" and Princeton historian Sean Wilentz's passionate testimony at the impeachment hearings. Admittedly, Dworkin and Wilentz were prominent figures in the impeachment debates, and they have invited the type of scorn that Posner heaps on them. But does their partisan hand wringing constitute "theory's debacle" and demonstrate the poverty of "academic practitioners of `soft' subjects"? Neither Dworkin nor Wilentz have any expertise in the constitutional theory or history of impeachments. Dworkin has spent his career on matters of interpretive theory and civil liberties. Wilentz made his name examining the social effects of early-19th-century industrialization.

One might reasonably question recent academic trends that have emphasized civil liberties and social history to the near exclusion of work on constitutional structure and political institutions, but that is not Posner's point. He does not challenge the public contributions of those scholars who actually had relevant expertise in the politics, history, and law of impeachments and the separation of powers, and his footnotes demonstrate his frequent reliance on their academic work. A possible exception is Yale law professor Bruce Ackerman, whom Posner criticizes precisely for backing away from his primary constitutional theory and advancing a novel argument about the illegitimacy of "lame-duck impeachments." At most, Posner shows the intellectual whiplash that can result when liberal academics rush to defend a Democratic president from all criticism. But he falls short when he switches from a social and political analysis of the culture war to a political criticism of constitutional theory.

Posner concludes his book on a somewhat pessimistic note. He does not think the Clinton scandals have damaged the moral fabric of the nation, but he does think the Clinton crisis exposed fundamental weaknesses in many aspects of the American establishment, from the government to the bar to academia. In hindsight, this assessment seems too harsh. The Clinton administration may have been seriously damaged by the impeachment (and probably appropriately so), but the rest of the nation seems to have survived all right. Posner himself demonstrates that the case against the president could have been handled better with only some modest adjustments of personnel and emphasis. In the end, Congress seems to have stumbled to the right conclusion, and the American people appear to be making an appropriate assessment of last year's events. The publication of Posner's astute analysis of the case against the president should speed that assessment along.

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  1. Hmmm. I’m thinking maybe I should read Posner.

    My layman’s take on the accusation of perjury was that it failed on element 4:
    1. A statement made before a competent tribunal, office, or person (or written under penalty of perjury)
    2. That the maker claims to be true
    3. That the maker does not believe to be true, and
    4. That is material. (Legalese for “matters”, or, in plain English, could make a difference in the outcome)

    Given the specific questions asked, and Clinton’s answers, I believe that at least one (did you touch her breasts) was false. But I doubt it was material, because Clinton’s lawyers had already offered substantially more than had ever been awarded in a sexual harrassment case.

    It will be interesting to see Posner’s take on this.

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