Washington's dirty linen

An Affair of State
October 22, 1999

Richard Posner's An Affair of State will hardly be welcomed by President Clinton's enemies; his friends will like it even less. Obviously, then, this book demands our attention.

Posner, chief judge of the seventh circuit, was named to the Supreme Court by Ronald Reagan in 1981. From that busy post, he also continues as a distinguished law professor, the founder and leading exponent of the law and economic theory of analysis, and an author of some 30 books, including,most relevantly, Overcoming Law (1995) and Sex and Reason (1992). Incidentally, he writes his own judicial opinions, now a rare practice. Precision, critical analysis, and devastating wit are the hallmarks of his writings.

There are two stories here. One is the melancholy story of the president's self-inflicted wounds; the other is the conduct of his enemies.In the first, the reckless, amoral president conducts a tawdry affair with a young intern, and then commits a series of perjuries and obstructs justice to cover up his complicity. In the other, the combination of the misguided independent counsel law, a dubious lawsuit brought by Paula Jones (dating back to Clinton's days as governor), an imprudent decision by the Supreme Court, and the president's very human inclination to conceal his sexual indiscretions force a bizarre "constitutional" issue. "The problem," Posner properly concludes, "is that both narratives are correct."

We all use some scale to measure lying, with results varying from Kant's absolutism to a post-modern relativism that lumps everything from white lies to whoppers as trivial. Posner saves the largest measure of his outrage - even contempt - for those academic intellectuals, historians and law professors who laboured mightily to wish away the president's conduct. Yet it was not intellectually inconsistent to condemn the president's wrongdoing and still not find such action impeachable or to make him subject to removal. Alas, the whole business had become so polarised, so dominated by unyielding positions, and so devoid of any intelligent discourse and exchange that such a position was beyond acknowledgement.

Posner fairly savages liberal academics Sean Wilentz and Ronald Dworkin, as well as prominent conservatives Robert Bork and William Bennett. [T]he left intelligentsia lacks a moral core, while the right intelligentsia has a morbidly exaggerated fear of moral laxity." Posner rightfully locates the debate as stemming from "unbridgeable differences in values that have their origin in temperament, upbringing, and life experiences rather than in reasoning to divergent conclusions from shared premises".

Kenneth Starr, widely perceived as the evil genius, the point man of the "right-wing conspiracy", curiously is treated rather gently by Posner. Starr is a like-minded former judicial colleague and associate in the conservative Federalist Society, and Posner believes it "unjust" to blame Starr for the spiralling of events. There is more to that story than Posner allows. Starr had pursued "Whitewater", along with its tributaries, "Travelgate" and "Filegate", for four years. For nearly two years, he had investigated the suicide of the president's aide, traversing ground familiar to police agencies and the former independent counsel whom he replaced, before reluctantly admitting that the suicide was just that. Starr even attempted to resign, apparently realising the job was a dead end, but his conservative allies prevailed on him to stay. Starr later acknowledged that he had been unable to prove the charges against the president. But by then Linda Tripp's tapes and, so to speak, Monica fell in his lap.

In a recent interview in England, Starr deplored the way Congress publicised the evidence he had submitted. "I wish I had done more to say to Congress: be careful." He cannot be serious. Congress is a sieve; did he think he was dealing with the Manhattan Project, which demanded secrecy?Had Starr never heard of 24-hour cable news networks?

Posner is not bothered by what many perceived as media excesses. He distinguishes between the working media, whom he believes had the story right, and the pundits who were no different than their inflexible political counterparts. Bork as Jeremiah and Bennett as National Nanny became part of the typical television fare.

Still, Clinton cannot escape the primary blame for the events of 1998-99. He had his enemies, to be sure, and very powerful ones. But his actions, and his ridiculous attempts to conceal them, are all reminiscent of Nixon's sad lament in 1977: "I gave them a sword. And they stuck it in." Clinton certainly would have concurred in Nixon's unforgettable self-indictment: "I impeached myself."

The president's contempt for the law earns him Posner's clearest condemnation. The Supreme Court runs a close second. After Nixon's resignation, Democrats became enchanted with the notion that "the appearance of justice is almost as important as justice itself", and created the independent counsel, which since has proved a very expensive embarrassment for both political parties. Then, in 1997, in Clinton vs Jones , the court frivolously allowed the civil suit against the president to go forward, ignoring any possibility that this weak, really minor case might eventually harm the nation.

The American political system, however, failed at a crucial level in the House of Representatives. After the Republicans' electoral reverses in November 1998, impeachment seemed destined for the ashcan. Conscious of their vulnerability, an amorphous band of Republican moderates tried to combine with Democrats, deeply embarrassed by the president's behaviour, and considered measures to "censure" him. They toed their leaders' line. But a few days after the impeachment, a group of them - enough to have made a difference - in effect said they did not mean it, and urged their senatorial colleagues "to consider strong censure as a remedy". One moderate, Jay Dickey, from the president's home district, washed his hands of the whole affair: "I've released myself completely from the final results. Whatever happens in the Senate will be complete acceptable to me." So much for accountability and responsibility.

Consensus never figured in Republican plans in 1998. Party loyalty and humiliating the president were the requirements. Tom DeLay - "impeachment happy", in a rare Posner understatement - supported by Henry Hyde and Judiciary Committee Republicans, gave new meaning to democratic centralism.Their vindictiveness knew no bounds. The four articles of impeachment approved by the committee contained unprecedented language for a presidential impeachment, for they would have disqualified Clinton "to hold and enjoy any office of honor, trust or profit under the United States".

The impeachment articles were dead on arrival when the house managers carried them to the Senate. The prosecutors knew that on a very painful level. Hypocrisy reigned supreme, across party and institutional lines. Hyde, leader of the House managers, barely concealed his contempt for the senators, belittling their lack of principle or political courage. Senators, never having met a television camera they did not like, spent hours on the national media, piously talking of their role as objective jurors, and at the same time, clearly revealing their adamant hostility to any defence of the president. Majority leader Trent Lott repeatedly intoned how impeachment had a long, important history, conveniently forgetting that in 1974, as a freshman member of Congress, at the end of Nixon's ordeal, he rejected impeachment as absurd.

Posner realises the ultimate absurdity of the congressional behaviour, although the president's actions, the Supreme Court's decisions and the extreme comments of his defenders and enemies are his chief targets. He carefully avoids a clear position on whether impeachment was the proper remedy, and he certainly does not believe that the president should have been removed. Indeed, Posner finds much to admire in Clinton's presidency, happily applauding him for consolidating the "Reagan Revolution", thus distancing himself from the likes of Bork and Bennett. If the cold war and the threat of nuclear war had been present, Posner is confident that the impeachment business never would have been started.

For Posner, the business boils down to a tawdry affair that the nation could tolerate because the times were not so perilous. But peril is more than a cold war and the threat of nuclear annihilation. The US has important problems with health policy, education and the environment, for starters. And wars rage on at least three continents. True, the government did not come to a grinding halt, as some Cassandras feared; but, in fact, the National Dirty Joke subsumed all other policy issues. Cui bono ? What have we gained? It is too early to tell how much effect this will have on the future of the presidency. So far, it does not seem to have mattered very much; in all probability, it will largely involve the historical evaluation of Clinton, and maybe another principle or two. Certainly, the whole affair will not enter the history books as a great constitutional struggle.

Stanley I. Kutler, professor of history and law, University of Wisconsin-Madison, United States, is the author of Abuse of Power: The New Nixon Tapes .

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

Author - Richard A. Posner
ISBN - 0 674 00080 3
Publisher - Harvard University Press
Price - £15.50
Pages - 6

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