Soaring Above the Sordid, Judge Rules on Monica Mess

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

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

While the Clintons house-hunt in Westchester County, plan Hillary’s run for the Senate and spin novel psychoanalytic and religious explanations for the President’s behavior, the rest of us have been left to lick our wounds from the Monica Lewinsky affair and the President’s impeachment. For the wounds are still there and, for many, they haven’t healed.

This is, of course, the case for ardent Clinton haters, the supporters of independent counsel Kenneth Starr, the House managers of the impeachment trial and the many others who can be construed to have “lost” the impeachment battle. But the wounds may be deeper, if less visible, among liberal Democrats who were forced to chose between principle and expediency, many of whom embraced hypocrisy in their emotion-powered rush to defend the President.

I still feel the sting of harsh words from close friends who are also ardent Clinton defenders. It became impossible even to carry on a civilized conversation to a degree I can’t recall since the Vietnam War. I all but stopped appearing on call-in radio shows about the Clintons because the personal attacks–from both sides–were often so vicious. On tour for my resolutely nonpartisan book about the Whitewater affair, Blood Sport , a Clinton supporter lunged at me in a Washington store, shouting epithets, veins bulging in his neck. It is the only time as a journalist I have felt physically threatened.

Now, like a refreshing balm for the mind and spirit, comes Richard Posner’s An Affair of State . It is not just a lucid, dignified analysis of this tangled mess from one of the country’s leading legal scholars. It is a testament to the capacity of the human mind to soar above even the most emotionally charged and sordid events and discover something of beauty and clarity.

If he hasn’t been already, Mr. Posner no doubt will be denounced by extreme Clinton supporters as a renegade, libertarian conservative of the Chicago School; he lectures at the University of Chicago Law School and is chief judge of the Federal Court of Appeals in Chicago. He is no fan of Mr. Clinton’s. But anyone the least fair-minded will recognize within a few pages that Mr. Posner has put aside partisan feelings and approached his subject with an open mind. In any event, his conclusions, many of which I do not personally share, are beside the point. What Mr. Posner has given us is a framework for rational debate. He has demonstrated that reasonable minds can disagree. He has reminded us, just when a powerful reminder is needed, that in civilized societies at least since ancient Athens, legal disputes are not resolved by brute force or popularity contests, but by a fair-minded determination of fact followed by reasoned application of the law.

Mr. Posner narrates the relevant facts in a mercifully brief 17 pages. It is striking, now that much diversionary rhetoric has subsided, how few of the facts in the Lewinsky affair were actually contested once Mr. Clinton grudgingly admitted to “inappropriate contact.”

Arguably the most important fact contested by the President, albeit indirectly, was whether he ever touched various parts of Monica Lewinsky’s anatomy or “caused” her to touch parts of his, thus bringing his behavior within the definition of “sexual relations” used in the Paula Jones lawsuit. In denying emphatically and repeatedly under oath that he engaged in sexual relations with Ms. Lewinsky, Mr. Clinton implicitly denied that he had ever touched her or caused her to touch him. While this is hard to envision (did he have his hands tied?), his denial implies that he never touched Ms. Lewinsky as she administered oral sex and did nothing to encourage her to do so. When asked before the grand jury to explain this, Mr. Clinton refused, simply repeating that he had never engaged in sexual relations with Ms. Lewinsky.

Mr. Posner flatly calls this a lie, as surely anyone not blinded by partisan zeal or self-interest would now concede. It is insulting to intelligence and common sense to expect anyone to believe Mr. Clinton’s testimony, especially given his persistent refusal to provide any plausible details to support his inherently implausible claim. It was this kind of assertion that made fools of Mr. Clinton’s trusted advisers and was so maddening even to people who wanted to forgive the President and move on.

Mr. Posner marshals the relevant facts and concludes that Mr. Clinton is innocent of sexual harassment. He dismisses as “unsubstantiated” allegations contained in the articles of impeachment that Mr. Clinton encouraged Ms. Lewinsky to testify falsely in the Paula Jones suit and sought to find her a job in return for her false affidavit and continued silence. But he finds the President guilty of obstruction of justice, including repeated perjury both in his deposition in the Paula Jones case and before the grand jury. In reaching these conclusions, he systematically raises and then demolishes various defenses put forth by Mr. Clinton’s lawyers, such as their tortured definition of perjury; he concludes that “their stonewalling and evasions reinforced the impression that Clinton had a lot to conceal.”

Accepting Mr. Posner’s conclusions thus far–and it is surprising how compelling they are, given the amount of obfuscation in the public discourse to date–should Mr. Clinton have been impeached and, if so, convicted and removed from office? Unlike the question of Mr. Clinton’s guilt or innocence, the impeachment process is only quasi-legal, and has become increasingly political in the two centuries since the Constitution was drafted. In a fascinating intellectual excursion through Constitutional and philosophical history, it becomes clear both how and why reasonable minds and honorable people might disagree, even if the facts and law are clear.

Mr. Posner neatly divides the warring camps into the “pragmatists” and the “rigorists.” The rigorist approach, which would have impeached, convicted and removed the President, “would have demonstrated an impressive commitment, Kantian in its rigidity, to the rule of law and would have sounded a clarion call for the reinvigoration of traditional morality,” Mr. Posner writes. The pragmatists, by contrast, do “not believe that the rule of law and conventional morality are the only social goods to be considered” and that the consequences of Mr. Clinton’s impeachment would have been the vindication of a sexual witch hunt motivated by partisan hatred of Mr. Clinton; an overturning of the popular will, expressed in both a recent election and in opinion polls; an irrevocable weakening of the Presidency in favor of Congress; and other unforeseeable but possibly damaging consequences, such as the paralysis of government.

Curiously, it isn’t clear which side Mr. Posner is on, though one suspects his sympathies lie with the rigorists. This, ultimately, is his assessment of Mr. Clinton: “What makes it difficult … to view him simply as a person in whom the elements [of good and bad] are fearfully mixed, is his shamelessness, his evident lack of conscience, his self-absorption and his apparent belief that the end justifies the means … [The] capacity for moral growth appears to be missing from President Clinton’s makeup.” If this seems harsh or unfair, Mr. Posner asserts, it is simply because the facts are so unflattering.

Mr. Posner has much to say about others in the drama: about Hillary Clinton (an “accomplice in her husband’s scheme of deception”); Mr. Starr (the victim of “slanders with no credible basis”); the Supreme Court (politically naïve); lawyers (an “extraordinary number of blunders on both sides”) and the media (its coverage “should actually bolster journalism’s image of professionalism”). But it is the framework of his argument, placing events firmly in their broad legal, moral and philosophical context, which should help soothe the passions on both sides of this contentious divide.

Some will no doubt find Mr. Posner’s approach too coolly rational, too Apollonian. But even they may agree that the outcome of the affair–impeachment in the House, acquittal in the Senate–wasn’t so bad, however illogical the process. In a surprisingly pragmatic conclusion for a seeming rigorist, Mr. Posner writes: “For those who think that authority depends on mystery, the shattering of the Presidential mystique has been a disaster for which Clinton ought of rights to have paid with his job.… My guess is that they are wrong, that Americans have reached a level of political sophistication at which they can take in stride the knowledge that the nation’s political and intellectual leaders are their peers and not their paragons. The nation does not depend on the superior virtue of one man.”

Soaring Above the Sordid, Judge Rules on Monica Mess