Vol. 9 No. 12 (December 1999) pp. 574-577.

AN AFFAIR OF STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON by Richard A. Posner. Cambridge: Harvard University Press, 1999. 276 pp. Cloth $24.95.

Reviewed by David A. Yalof, Department of Political Science, The University of Connecticut.


Scholars and lawyers often assume that members of the federal judiciary will steer clear of commenting on the most controversial disputes that shape our political landscape. Of course Richard Posner is no ordinary federal judge. Not even the highly charged and emotional topic of human sexuality has escaped the distinguished jurist's scholarly attention. Nearly a decade ago Judge Posner employed rational choice theory in new and creative ways to explore the complex history of human sexuality (Posner 1992). Now, on the heels of only the second impeachment of a president in American history, Posner brings his considerable analytical talents to bear on the subject of the Clinton-Lewinsky sexual affair and all the political, legal and cultural struggles that arose out of its public discovery.

Even those with an insatiable appetite for understanding the political events that influence our polity might be wary - and for good reason - of picking up AN AFFAIR OF STATE. Between January 21, 1998 (when news of the liaison first came to public light) and February 12, 1999 (the day the Senate impeachment trial ended in President Clinton's acquittal), the public was treated to a non-stop public debate over the affair itself and the manner in which it was discovered and investigated. Riding this wave of curiosity, the cable network MSNBC built its audience on the strength of its "all Monica, all the time" coverage. Many scholars, journalists and lawyers comprised a virtual cottage industry of scandal pundits, poised to comment on moral, political and legal issues surrounding the affair itself, the investigation of the affair by Independent Counsel Kenneth Starr, and the subsequent legislative proceedings that took place in the House and Senate. Perhaps
this is the price we must pay for enjoying relative peace and prosperity in our country. With no other national crisis drawing upon our attention, the Clinton-Lewinsky affair was prodded and poked for every news angle imaginable. Given such a lengthy period of attention and discussion, what (if anything) new can be said about this affair?

At times even Judge Posner seems somewhat exhausted by these events. Although the scandal and its aftermath constitute a "fascinating chapter in American political, social and legal history," the mere thought of dragging out the scandal further through future criminal prosecutions makes even the author cry "enough is enough!" (p. 195). Interestingly, Posner chose NOT to contribute a sense of perspective to the scandal based on hindsight and the passage of time. In fact, he completed writing AN AFFAIR OF STATE a mere four days after President Clinton's Senate trial had ended. Instead, Judge Posner believes that Clinton's ordeal introduced to the public a number of issues

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of law, jurisprudence, morality, politics and even sociology that need to be weighed and sifted. And by writing nearly contemporaneously with those events, Posner avoids a so-called "hindsight bias," which he believes is a serious problem in most historiography.

In Judge Posner's view, there is plenty of blame and criticism to go around. As expected, he takes President Clinton to task for his conduct during and after the sexual affair. He also identifies numerous failures of other political actors: the judiciary, the political establishment and the Congress. Certainly many of these failures have been documented elsewhere, if less eloquently. Posner is quite critical of the Supreme Court's decisions in CLINTON v. JONES (1997) and MORRISON v. OLSEN (1988). Although concluding that the impeachment power "is not limited either to actual crimes or to some narrow set of public acts enumerated by historical precedent," Judge Posner faults the House prosecutors for fumbling the obstruction of justice charge, which he believes is the "only crime plausibly attributable to the president growing out of his affair with Lewinsky" (p. 36). To unpack the legal confusion, Posner focuses primarily on the actual impact that his conduct will have on the rule of law, and the role and office of the President. Although these effects are of course unknowable, Judge Posner's detailed
analysis of the charges at least offers a sophisticated perspective on such issues.

Even more welcome is Posner's discussion of how other actors in the process, most notably those from the legal and academic professions, failed in this process. Although his detractors often label him a conservative, no side of the political spectrum is spared Posner's critique here. He accuses the "left intelligentsia" (Sandel, Dworkin and Wilentz, among others) of lacking a moral core, commenting recklessly in advance of the evidence, and reaching "flamboyant conclusions" that fly in the face of the evidence. Meanwhile the "right intelligentsia" (Frum and William Bennett are identified specifically) is charged with possessing a morbidly exaggerated fear of moral laxity that taints their commentary of the scandal. Nor was this the legal profession's "finest hour." Law school deans and other leaders of the legal
profession remained conspicuously silent about the ethical dimensions of Clinton's conduct even when they were waxing poetic about its relevant legal dimensions. And while lawyers working for the Independent Counsel and the House Judiciary Committee committed "errors of tact, taste and public relations," the president's lawyers engaged in "technical acrobatics" which (in Posner's view) may have tipped the balance in favor of impeachment. The author in the book's first two chapters details all these errors and foibles ably.

Judge Posner is at his best when identifying and analyzing the hypocrisy of others. And the scandal that unfolds in AN AFFAIR OF STATE provides him with numerous opportunities to do so. Examples abound of partisan-motivated inconsistencies. As Posner points out, the roles played by the Democrats (urging a narrow, formalist construal of "high crimes and misdemeanors") and Republicans (pushing for a broader construction of that same phrase) were exactly the opposite of the roles those parties assumed in 1974, when a Republican president was threatened with impeachment. Accordingly, Posner speculates that if the president were a Republican this time around, Republicans would have denounced the Independent

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Counsel's investigation of him "in the same terms that the Democrats used. And with perfect sincerity" (p. 91), he also notes that Republicans took a much softer line on obstruction of justice in the Iran-Contra affair, while Democrats who had "thundered rule of law rhetoric" in 1987 were now open-minded about the rule of law in this debate. For example, contrast Henry Hyde's public defense with his criticism of President Clinton. However, such role reversals are deemed common because after all, "legislators and other politicians are not committed to consistency" (p. 100). By contrast, such reversals of position by members of the academic and legal communities are less easily excused. Whether all this serves to prove, as Posner suggests, that academic law, moral and political theory, and the study of history are
actually "soft fields," permeable to political disagreement in so many instances, is at least debatable.

Certainly AN AFFAIR of STATE is disappointing in some respects. Judge Posner's discussion of the legal proceedings that preceded the submission of
the Starr report seems at times to be hopelessly divorced from the political realities that surrounded the litigation in question. For example, in Chapter One, he faults the Independent Counsel's lawyers for attempting a global definition of "sexual relations" at the president's grand jury deposition. Apparently they should have utilized information in their possession to ask him more specific questions, like "Did Lewinsky's lips ever touch your penis?" (p. 48). Such criticism ignores the reality of the
political environment that existed outside the grand jury room. A public that was already sympathetic to the president might have turned further against the prosecutors if they had employed such tactics. A president with no practical means of shielding himself by the Fifth Amendment at least enjoyed some latitude from the public in the way he answered the prosecutor's questions. Indeed, at the grand jury deposition itself, the president often referred vaguely to the notion of a right to personal privacy, a right that, at least at that late point in the proceedings, could not be taken seriously. However, that was the reality prosecutors faced when investigating a sitting president of the United States.

Judge Posner is also guilty on occasion of assuming some controversial propositions. At one point he reminds us that "impeachment means, in effect, indictment, and so the House of Representatives corresponds to the grand jury" (p. 79). However, that issue has proven itself to be a highly contentious one. Some scholars (including some of those from the "left intelligentsia") argued that the Founding Fathers intended the House to serve as an elaborate and penetrating screening process. By contrast, Posner later admits that grand juries usually "rubber stamp the indictments proposed by the prosecutors" (p. 132). To draw on the old vernacular phrase, does that mean the House can impeach a bologna sandwich if the independent counsel asks it to? Whereas grand juries never draw up the indictments themselves, the House did draw up the impeachment articles in this case. Later Judge Posner calls impeachment "an effective, powerful and legitimate form of shaming penalty" (p. 195). Would he say the same about a felony indictment that later results in an acquittal?

Finally, some readers may take issue with those instances in which Posner stops short of reaching judgments about the motivations of certain political actors. The

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author gladly offers his own take on the credibility of witnesses and the strength of testimony. Indeed, as Judge Posner readily admits, his sketch depends critically on the credibility of Monica Lewinsky, who had admitted to Linda Tripp that she had been lying all her life. At one point Judge Posner even speculates on what Chelsea Clinton may have thought of the allegations ("Children like to think well of their parents"). Given the author's willingness to offer such assessments -- a real strength of this book -- his refusal to speculate about what happened at the now infamous lunch between Judge David Sentelle (who had called for the original special counsel's removal) and conservative senators Lauch Faircloth and Jesse Helms seems a bit curious. Certainly Posner has the right to confine himself to
comment only on the basis of "the public record," but doesn't that include media reports and other information beyond just the Starr Report? Good relations with judicial brethren may be a factor in this instance -- a small price to pay when federal judges weigh in on these political issues in the first place.

Still, such criticisms are quite minor. Judge Posner has written an eminently readable account of the events surrounding President Clinton's impeachment, and he has done so in a manner that generally defies partisan or ideological pigeonholing. With few exceptions, this 266 page book covers the landscape of the scandal quite comprehensively, and in the process offers novel and thought-provoking solutions to many of the legal conundrums highlighted within. Accordingly, it may prove an invaluable guide for undergraduates in particular as they try to sort through the crisis and its continuing aftershocks.

REFERENCE:

Posner, Richard A. 1992. SEX AND REASON. Cambridge: Harvard University
Press.

CASE REFERENCES:

CLINTON v. JONES, 117 S.Ct. 1636 (1997).

MORRISON v. OLSEN, 487 U.S. 654 (1988).

Copyright 2000 by the author.