This book does a superb job of exploding arguments offered by both supporters and opponents of impeachment. Posner's writing is engaging and lucid, and his analyses are usually compelling. While some think he is too easy on Ken Starr, the fact is that Starr's prosecutorial tactics are used routinely by Clinton's own Justice Department and by state prosecutors across the country. I happen to believe that over the past two decades or so the Supreme Court has given prosecutors too much power, but the suggestion that Starr's tactics were somehow unique is a distortion.
One of the arguments heard repeatedly during the impeachment hearings and Senate trial is that the President's lies were justified because the questions put to him were improper. In a new twist on this argument, one of the reviewers below goes so far as to suggest that "Biblical" conceptions of morality dictate this conclusion. (If there is a Biblical precept that justifies lying under oath if a question is improper, I am not aware of it, and in any event it is not likely to be of much help to an ordinary citizen being prosecuted for perjury by the Justice Department.) Posner makes short shrift of this entire line of argument.
First, he shows that the questions put to Clinton were "material," which necessarily means that they were proper deposition questions. This conclusion is buttressed by the fact that it is commonplace for defendants in sexual harassment cases to be asked questions about other sexual relationships in the workplace. Moreover, as Jeffrey Rosen, a law professor and strong opponent of impeachment, pointed out in a September 28, 1998 New Yorker article, President Clinton enthusiastically signed amendments to the Federal Rules of Evidence in 1994 that made it especially difficult for a defendant in a harassment case to avoid answering these kinds of questions.
But even if it could be plausibly argued that the President's prior workplace sexual encounters were not a proper subject of inquiry in his deposition, a federal judge who was present at the deposition -- and who had been presented with lengthy briefs regarding this issue -- decided otherwise. As Posner indicates, if the President disagreed with her ruling, that surely did not give him license to lie under oath in response to the questions. Instead, under our legal system, the proper response would have been to appeal the Judge's ruling, or to refuse to answer the questions and accept the legal consequences of that refusal. The latter course of action, incidentally, is one that another staunch opponent of impeachment, Alan Dershowitz, maintains the President should have undertaken.
President Clinton also had at least one other option. He and his lawyers had to know well in advance that the Jones lawyers would want to ask questions about his other workplace sexual encounters, and that the Judge would almost surely allow those questions. As such, the President might have instructed his lawyers to find a way to settle the lawsuit before his January 1998 deposition (instead of ten months later), which would have obviated his felt need to resort to the strategy of lying in response to those questions.
Reasonable people can disagree over whether the President should have been impeached by the House or acquitted by the Senate in the impeachment trial. But regardless of how one feels about impeachment (and Posner implies that he would not have voted to impeach), we all ought to be able to agree with Posner that our legal system does not and cannot countenance lying under oath in response to questions which the witness (but not the Judge) believes to be improper.