An Affair of State: The Investigation, Impeachment and Trial of President Clinton [Paperback]

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.

Judge Posner serves the reader and the law well when he describes the difference between popular justice and legal justice. There is a difference, a crucial one. It is something Americans should not be confused about. If you are confused, you should read the book.

In addition, Judge Posner takes pains to examine his subject matter from the angle of every interest group, partisan advocate and player in the ordeal. You may not agree with everything he says, but he says something about everything. He believes that the smearing of Kenneth Starr was obvious slander and an effective but repulsive tactic. He says that President Clinton was not able to confess his crimes fully to the public and be redeemed because of his fear of indictment. In his view the Starr Report was too invasive of the President's privacy. And he asserts that prosecutors should not be put on trail with the defendant. His point that we should not worry about the plight of convicted felons was long overdue. Take that, Geraldo!

I was disappointed that Judge Posner chose to mock his senior, Justice Renquist, three times for the inconsequential matter of wearing a few gold stripes on his robe. One fondly worded quip would have been sufficient.

Getting past that low moment, you may find this book will have you thinking to yourself, "That's just how I saw it." And perhaps you may find yourself giving some credence to a point of view you rejected before. Posner even touches on the entertainment value of the scandal, and he does it in an entertaining way. There is not one boring sentence in this entire book.

Should Clinton have been impeached, and if impeached, convicted? Richard Posner says the question is unanswerable. So why read this book?

This book shows how an outstanding mind thinks through important legal and moral issues where existing law and precedent are unclear or inconclusive. It is highly critical of almost everyone involved, including Republicans, the Supreme Court, Clinton's defenders, William Bennett, the TV pundits and 'intellectuals' who commented on the case. The four hours I spent reading this book were far more interesting, clarifying and valuable by far than the many hours I spent in front of the TV during the year or so of the crisis. Too bad this book wasn't available in the early months of the crisis. A lot of misleading and inaccurate information and thought could have been sorted through much more easily.

Here are a few of Posner's more interesting views, with which I agree:

1. The volume and brazenness of Clinton's lies are impressive. As Posner says, to keep on lying after no one believes you does not mislead, but it shows contempt for truth and truthfulness.

2. Clinton made a travesty of the religious rite of atonement by asking for forgiveness and absolution without offering to incur any cost.

3. The Supreme Court should not have allowed Paula Jone's suit to proceed during Clinton's presidency.

4. The avoidance of scandal is a public duty of the President, since it weakens his effectiveness in discharging other public duties.

5. Failing to convict Clinton does not send a message that what he did was OK, or that he is 'above the law'. He remains subject to the ordinary processes of the law, whether during or after his term.