An Affair of State by Richard A. Posner
An Affair of State: The Investigation, Impeachment, and Trial of President Clinton
by Richard A. Posner
Harvard. 276 pp. $24.95
What, if anything, did Bill Clinton do wrong in the Monica Lewinsky affair? If he did do wrong, how should he have been punished? How well did American legal and constitutional mechanisms operate in this scandal? What harm, if any, did it visit upon the United States?
These four large questions are the primary subject of An Affair of State, an effort to think intelligently about the year-long impeachment drama. It is the latest book to roll off the astonishing “just-in-time” assembly line that Richard A. Posner operates in his writing den even as he toils at what would appear to be two demanding day shifts elsewhere: senior lecturer at the University of Chicago law school and chief judge for the U.S. Court of Appeals in the seventh circuit.
The prolific Posner has not previously ventured so directly into contemporary political affairs, but this volume is hardly an excursion into uncharted territory. The Clinton imbroglio fits handily within a diversified intellectual portfolio that encompasses, among other things, the “intersection of law and morality,” a subject he has addressed directly in a book published earlier this year, The Problematics of Moral and Legal Theory, and human sexuality, which he tackled in his 1992 Sex and Reason. The Clinton scandal’s “sheer multifaceted complexity—factual, legal, political, and moral,” he writes here with characteristic self-effacement, “cries out for the sort of synoptic compendious treatment that I have attempted in several previous books on cross-disciplinary subjects.”
Not surprisingly, given both his profession and the nature of the subject, Posner arrives at his clearest answers in those chapters devoted to sorting out the legal issues. Not that assessing Clinton’s legal culpability is a simple pursuit; on the contrary, it entails scrutinizing the conduct not only of the President, a large challenge in itself, but also that of his accusers, preeminent among them the special prosecutor Kenneth Starr.
To begin with the latter: though Posner is a critic of the independent-counsel law under which Starr operated—he calls it a “mischievous anomaly” in our constitutional system—he finds no credible evidence that Starr engaged in any kind of malfeasance. Nor does he believe, as many Clinton supporters have charged, that a different special prosecutor would have proceeded differently, i.e., declined to investigate when confronted with Linda Tripp’s revelations about Monica Lewinsky’s false affidavit in the Paula Jones case. Starr did make mistakes, Posner finds, but he deserves to be reprimanded only for tactical misjudgments: some of the explicit sexual details contained in his report to Congress, for instance, were, in Posner’s view, “gratuitous.”
By contrast, the target of Kenneth Starr’s investigation does not escape anywhere near so lightly. Reviewing the array of offenses committed by the President, Posner concludes, again contrary to what was often claimed by Clinton’s defenders, that they were of a sufficient magnitude to have provoked prosecution had Clinton been an ordinary citizen facing an ordinary prosecutor. Moreover, Posner is convinced “beyond a reasonable doubt” that Clinton engaged in obstruction of justice and committed perjury. All told, if the President had been tried and convicted as a first-time offender in a criminal court, his multiple lies under oath and other violations of law would have been considered grave enough to draw a punishment of 30 to 37 months in prison—a “conservative estimate” that Posner arrives at by using federal sentencing guidelines.
But Clinton was not an ordinary first offender, and he was not tried before an ordinary court. Rather, he was indicted (impeached) by the U.S. House of Representatives and put on trial by the U.S. Senate. And so the question is: should he have been, and, if so, should he have been removed from office by the joint action of these bodies?
After surveying the history of impeachment in this country and England, and offering a close comparison of the Clinton case with the Nixon precedent, Posner emerges rather equivocally on these questions. The resignation of Richard Nixon in 1974, though a major benchmark, does not, he says, offer any sort of definitive guide. Although Clinton’s supporters stressed incessantly that Nixon’s transgressions had involved the misuse of office whereas Clinton’s were primarily of a private nature and therefore not impeachable, this distinction, Posner shows, is without a difference: “Does it follow that if President Clinton, using none of the resources of his office and so being innocent of any misuse of presidential power, had killed Monica Lewinsky with his bare hands in order to prevent her from cooperating with the independent counsel, he would not have committed an impeachable offense?” The answer is obvious, and applies not only to murder but to lesser “private” crimes.
Though Posner never arrives at an unqualified judgment—“the search for a simple, definite rule of impeachability,” he concludes, “must be abandoned”—he does suggest that perhaps neither Nixon nor Clinton should have been removed from office:
I don’t want to defend Nixon, but only to point out, much as Clinton’s defenders did in Clinton’s case, that while what Nixon did was wrong, it was not necessarily a grave enough wrong, given the circumstances, to warrant the extreme sanction of impeachment. Like Clinton, Nixon had won two elections—the second more decisively than Clinton’s second—and it was a Congress controlled by the party that had lost those elections that was trying to push him out of office. Like Clinton, Nixon could point to arguably redemptive successes: in Nixon’s case detente, the opening to China, and the consolidation and expansion of Lyndon Johnson’s Great Society programs. If Nixon had had Clinton’s charm and Clinton’s booming economy he might have ridden out the storm—and that might not have been a constitutionally improper outcome.
If Posner’s assessment of the constitutional issues is necessarily tentative, he comes to a far more pointed verdict when he turns to the moral questions.
When evaluated from the standpoint of private morality—Posner’s term (following Henry Sidgwick, Practical Ethics, 1898) for the obligations we owe to others as fellow members of society—some of the President’s misdeeds, particularly those for which he publicly apologized, do not appear to him all that serious. One does not have to regard adultery as permissible, writes Posner, to note that it is widespread in America today, and disapproval of adulterous conduct should therefore be “tempered by recognition of its commonness.”
So too with lying. Again from the angle of private morality, the falsehoods the President told his family, friends, colleagues in government, and even the American people were not terribly injurious. Few people were actually misled—“his wife must know him well enough by now to have seen through his denials”—and those taken in were by and large (though not entirely) “willing victims” who did not in any case endure much in the way of harm. (The exceptions included the President’s daughter; various associates like Betty Currie, whom he exposed to legal jeopardy; and Monica Lewinsky.)
But if, from the standpoint of private morality, Clinton’s transgressions look ugly but not terribly egregious, from the standpoint of public morality—Posner’s term (again following Sidgwick) for the obligations we have to others by virtue of our occupation or position—they look considerably worse. The holder of the highest elected office in the United States earns his pay for attending to duties that are both executive and exemplary in nature. Clinton’s brand of misbehavior critically subverted both functions.
The President’s repeated public lying cost him dearly in the most precious coin of executive leadership—credibility—endangering his ability to carry out the nation’s business, in particular in foreign affairs. Here Posner cites the pervasive skepticism that greeted Clinton’s decision to initiate a bombing campaign against Iraq just as the House impeachment vote drew near. At the same time, the tawdriness of the President’s conduct fatally compromised his standing as an exemplar.
Once again, adultery is not the issue for Posner; the issue is being fellated by an intern in the White House while conducting official business over the telephone with Congressmen, and other Oval Office shenanigans. It was, he writes, on the grounds 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.” And he suggests that both Starr and the House Judiciary Committee erred in not framing the charges against Clinton around this unprecedented “affront to fundamental and deeply cherished symbols and usages of American government.”
Considering both the vagaries of history and how deeply divided opinion still is about the Clinton administration, one can hardly predict how this presidency will be remembered a century from now. But whatever view comes to predominate, An Affair of State is likely to become the work to which future historians will turn first in seeking a reliable contemporaneous explanation of what the impeachment scandal was all about. Not only does Posner sort out the issues with precision, but the highly modulated distinctions and qualifications he offers along the way accomplish the difficult feat of elucidating a subject that has already unleashed a cataract of less than edifying ink. An Affair of State also reveals once again what a broad and bristling intelligence Posner possesses, at once subtle and direct, iconoclastic and full of high good humor.
Posner is by no means unaware that, along with everything else, the Lewinsky mess was a year of delectable fun. It was “Wagnerian in intensity and protraction,” he writes,
with wonderful actors, the Clintons, in the lead roles, a supporting cast of hundreds, dramatic revelations aplenty (the tapes, the dress, the sex lives of Republican Congressmen), a splendid libretto by Kenneth Starr, a Greek chorus of television commentators; plus hapless walk-ons, clandestine comings and goings, betrayals, suspense, reversals of fortune, hints of violence (supplied by Clinton haters), a May-December romance as it might be depicted by an Updike or a Cheever, a doubling and redoubling of plot, a Bildungsroman, even allegorical commentary (the movies Primary Colors and Wag the Dog), and a touch of comic opera (Chief Justice Rehnquist’s costume out of Iolanthe). It was the ultimate Washington novel, the supreme and never to be equaled expression of the genre.
But if Posner never entirely loses sight of the (admittedly callow) pleasures of seeing the high and mighty caught up in such an unending burlesque, his purpose is nonetheless entirely serious, and he does not refrain in the end from rendering his own severe character judgments of the minor and major protagonists who made their entrances and exits on the stage. He has cutting words for the Justices of the Supreme Court, who—eight out of the nine, Justice Scalia alone dissenting—upheld the independent-counsel law when it came before them in the Morrison case, and who—nine out of nine—allowed a sitting President to be the target of civil litigation centering on sex, i.e., the Paula Jones case. He lambastes House and Senate leaders for making up impeachment rules and procedures on the fly and for sundry other sins that turned the President’s trial into a “travesty of legal justice.” And he subjects to withering scrutiny the arguments advanced by the President’s various champions in the academic world, including, most prominently, the philosophy professors Michael Sandel and Ronald Dworkin and the historians Sean Wilentz, Jack Rakove, and Arthur Schlesinger, Jr. Summing up their behavior, Posner writes that “it is tempting to conclude (though overgeneralization is a danger here) that the Left intelligentsia lacks a moral core.”
But the most stinging lashes of all are reserved for President Clinton. “The capacity for moral growth appears to be missing from President Clinton’s makeup,” Posner writes at one juncture. At another, he speaks of Clinton’s “shamelessness, his evident lack of conscience, his self-absorption, and his apparent belief that the end justifies the means even when the end is the petty one of burnishing his historical reputation.” At still another, he accuses him of having “defiled the Oval Office. . . . Imagine a President who urinated on the front porch of the White House or burned the American flag; these acts could be thought metaphors for what Clinton did.”
And yet, for all its distinctive merits, An Affair of State is hardly free of its own serious if fascinating flaws.
For one thing, even as he flays Clinton for his moral trespasses, Posner’s peculiar philosophical stance undercuts the severity of his judgments, if not the very possibility of a meaningful morality. The standard he applies throughout, when he pauses to explain it, turns out to be nothing more transcendent than “the nation’s current moral code,” or “what the vast majority of Americans believe.” Morality, in this conception, is contiguous with the public-opinion polls.
Indeed, this is essentially the same position Posner adumbrates in his recent book, The Problematics of Moral and Legal Theory. “[A]ll morality is local,” he argues there. If we say, for example, “that the Nazis really were immoralists, they were, but according to our lights, not theirs” (emphasis added). So too with President Clinton: “the morality that condemns the traitor, the adulterer, etc., cannot itself be evaluated in moral terms.”
If Posner’s unabashed embrace of relativism inevitably diminishes the force with which he judges Clinton, the libertarian political stance that flows from that embrace helps to explain his final and strikingly buoyant assessment of the effects of the scandal on American society. Not only is it “especially premature,” he concludes, to assert that the episode has left us worse off, but in fact its repercussions “have not been bad at all.” Among other good things, the impeachment scandal has made people more “civic minded,” by compelling them to think about public affairs; it has helped create more transparency in government; and, finally, it has “contributed to a franker public discourse on matters of sex” and may even work to encourage safer forms of it:
It is too soon to tell whether oral sex will become a more popular sexual practice as a result of the incessant public discussion of the President’s taste for it, but, if so, it would not be the end of the world; . . . it is, at least, securely contraceptive and only rarely a conduit for disease. Phone sex is better yet on these dimensions.
One can perhaps sense a wry smile materializing on Posner’s face as he set those words to paper, but he is also being completely serious. The “residuum of sexual puritanism” in the United States, he complains, is “dysfunctional,” and he bemoans the “absurd assertions” by some conservatives “that the revelation of Clinton’s affair with Lewinsky has weakened parental control over the sexual behavior of their children.”
All this is very provocative and against the grain, but is it correct? If we are to gauge by Posner’s own measure of moral right and wrong—“what the vast majority of Americans believe”—his stated preference for a less puritanical regime must be deemed quite arbitrary: public opinion, after all, seems to be rather ambivalent on the question of whether mores in the United States are currently too restrictive or too loose. Either Posner is here advancing a private and possibly idiosyncratic opinion in the guise of dispassionate analysis, or he is deliberately withholding from his readers the terms of his moral/ political calculus. In either case, there is ample reason to believe that he is wrong about the effects of the bizarre psychosexual drama that played itself out on the national stage for more than a year—to believe, in other words, that it has degraded our country and its culture much more than he cares to admit.
One wonders, for example, exactly what Posner would make of a front-page story—“Parents Are Alarmed by an Unsettling New Fad in Middle Schools: Oral Sex”—that appeared in the Washington Post just as his book was going to press. The article quotes thirteen- and fourteen-year-old girls expressing puzzlement over their parents’ disapproval of the sexual practice in which they now routinely indulge at parties and in parks. “What’s the big deal?” says one. “President Clinton did it.”
But whether America is becoming more “dysfunctional” or less “dysfunctional” now that seventh and eighth graders are engaging in “securely contraceptive” forms of sexual behavior, it is hard not to agree with Richard Posner that, thanks to President Clinton, “franker public discourse on matters of sex” is indeed upon us. It is upon us with a vengeance. For that ignominious contribution alone, Clinton’s place in the glorious history of our republic is secure.