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

Richard A Posner
5.0 out of 5 stars  See all reviews (1 customer review)
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Book Description

9 Oct 2000
President Clinton's year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality; and political and cultural conflict. In a book written while events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. he compares and contrasts the Clinton affair with Watergate, Iran-Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate.

Product details

  • Paperback: 282 pages
  • Publisher: Harvard University Press; New edition edition (9 Oct 2000)
  • Language: English
  • ISBN-10: 0674003918
  • ISBN-13: 978-0674003910
  • Product Dimensions: 15.5 x 1.9 x 23.4 cm
  • Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
  • Amazon Bestsellers Rank: 2,003,588 in Books (See Top 100 in Books)

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Review

Richard Posner has written a remarkably even-tempered and reasonable book about the impeachment of President Bill Clinton, a welcome contrast to the overheated rhetoric and raw emotions generated by the event itself...["An Affair of State"] offers a sober second look at the misconduct and cover-up that led to only the second presidential impeachment in American history...The most important contribution of the book is its careful assessment of Clinton's legal culpability as a result of his efforts to cover up his affair, and in particular to hide it from Paula Jones' attorneys and Kenneth Starr's grand jury. Posner patiently wades through what is incontestably known and what can be reasonably inferred about Clinton's actions...[He] is precise and persuasive in puncturing Clinton's lies and his defenders' obfuscations, and his demonstration that perjuries such as the president's are both readily proven and regularly punished in the criminal courts is an important corrective to the legal confusions fostered by the impeachment debates.--Keith E. Whittington "Reason "

Inside This Book (Learn More)
First Sentence
The year-long political, legal, constitutional, and cultural struggle that began on January 21, 1998, when the world learned that Independent Counsel Kenneth Starr was investigating charges that President Clinton had committed perjury and other crimes of obstruction of justice (primarily subornation of perjury and witness tampering) in an effort to conceal a sexual affair with a young White House worker named Monica Lewinsky, is the most riveting chapter of recent American history. Read the first page
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Front Cover | Copyright | Table of Contents | Excerpt | Index | Back Cover
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Most Helpful Customer Reviews
1 of 2 people found the following review helpful
5.0 out of 5 stars Balanced and informative 9 July 2001
Format:Paperback
This is a remarkably readable book which studies in some detail the legal and social ramifications of President Clinton's impeachment. It is above all very balanced in its presentation and in its judgments. The author also displays an enchanting sense of humour. In sum, a highly recommended book by America's most prolific and innovative legal scholar.
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Amazon.com: 3.3 out of 5 stars  40 reviews
37 of 40 people found the following review helpful
5.0 out of 5 stars Exposes Invalidity of Many Arguments, Pro and Con 4 Dec 1999
By A Customer - Published on Amazon.com
Format:Hardcover
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.
40 of 46 people found the following review helpful
4.0 out of 5 stars Keep your mind open and you will enjoy this book. 23 Oct 1999
By Theresa in Texas - Published on Amazon.com
Format:Hardcover
No one can read this book without appreciating the facile mind and no-holds-barred candor of Judge Posner. I would recommend that readers let down their defenses and drop their emotional attachments to any fixed point of view they came to hold during the Lewinsky scandal. If you don't have an open mind you won't enlarge your understanding of this historical event in our nation's history.
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.
34 of 39 people found the following review helpful
5.0 out of 5 stars this book is pragmatic, not partisan 24 Jan 2000
By A Customer - Published on Amazon.com
Format:Hardcover
A number of reviewers of this book incorrectly state that Posner takes a partisan, Republican view of the Clinton-Lewinsky affair. I'm a Democrat who voted twice for Clinton, but this characterization of this book is completely untrue. This book is pragmatic, not partisan.
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.
8 of 8 people found the following review helpful
5.0 out of 5 stars pragmatic, not partisan 6 April 2000
By A Customer - Published on Amazon.com
Format:Hardcover
This book is not partisan as some reviewers have claimed. Itis pragmatic.
It also seems strange to judge the book solely bythe highly debatable point of whether or not Posner violated the Canonof Judicial Ethics in writing it.
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 the many interesting points made by Posner, with which I agree:
1. It is on the ground 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.
2. A President has a duty to avoid becoming enmeshed in a scandal that is likely to weaken his effectiveness. In running that risk, for wholly personal rewards, the Clinton exhibited a high degree of personal irresponsibility. That was a personal failing. But the avoidance of scandal is also a public duty - a precondition to the effective discharge of the President's other public duties.
3. A pragmatic decision-maker wants decisions to be based on an assessment of their probable consequences. In legal cases, and a fortiori in impeachment, which is only quasi-legal, this is a legitimate or at least common approach when the conventional materials of legal decision-making, such as precedent or a clear statutory or consittutional text, yield no direction. Since it is unknowable whether the good consequences of impeaching and removing Clinton outweigh the bad, the pragmatist would lean against impoeachment.
4. Those who claim that the failure to impeach Clinton makes what he did OK, or puts him 'above the law' are just wrong. He remains subject to the ordinary processes of the law, whether during or after his term.
5. To keep on lying after no one believes you does not mislead, but it shows contempt for truth and truthfulness.
6. Clinton made a travesty of the religious rite of atonement by asking for forgiveness and absolution without offering to incur any cost.
7 of 7 people found the following review helpful
5.0 out of 5 stars Posner gives his view and damns prior restraint by ABA 22 April 2000
By "appalachianson" - Published on Amazon.com
Format:Hardcover
The ABA prohibits judges from speaking out about 'live' cases. This has nothing whatever to do with law and everything to do with keeping the faith within the increasingly incompetent and incestuous cabal the ABA has become.
Disregard any and all the reviews questioning Posner's ethics and form your own opinions on this excellent legal opinion.
For that is what An Affair of State is: a legal opinion. No more, no less; and how lucky are we to have a legal opinion from a sitting federal judge?
Extremely lucky. Posner's Libertarian instincts are all over the book. While Posner represents his kindred well in accepting breaches of reason because the law accepts them, he sure as hell reveals no love for Republicans or antipathy for Democrats.
Posner points out events, gives his opinions, and then footnotes and/or annotates his opinions. How much better can it get than that? Intelligent readers are provided a literal roadmap to Posner's thinking.
In a sentence this is one of the most honest, well reasoned books I've ever read, period, and clearly the cream of the crop on the legalities of the impeachment.
I don't agree with all Posner's conclusions, but one beauty of his book is he doesn't expect everyone to agree. It is refreshing indeed to read a book by a genius who expects others to form their own opinions and who provides all his sources to make further research a walk in the park.
For anyone with an open mind and who is curious about how the law really works, this book is a treasure.
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