While the national fixation on President Clinton’s impeachment has given way to ennui, Richard A. Posner sees that year-long struggle as "the most riveting chapter of recent American history."
     
And now Posner — who is chief judge of the U.S. Court of Appeals for the 7th Circuit, in Chicago, and one of the nation’s most accomplished and prolific legal scholars — has written the most thoughtful and evenhanded analysis to date of the legal and political crisis. His book — An Affair of State: The Investigation, Impeachment, and Trial of President Clinton — is to be published in September by Harvard University Press.

With a candor and a biting wit that may jar those who like their federal judges dull and decorous, Posner cuts through the sometimes priggish moralizing of conservative Republicans as well as the partisan cant of liberal Democrats to expose "the failure of the judiciary, the political establishment, the Congress, the legal profession, and the academic community to cope with a novel challenge."

The 266-page narrative offers no revelations. But Posner’s only "source" — the public record — provides what he calls "an enormous challenge to one’s powers of judicious reflection." And while most readers will disagree (as I do) with some of his conclusions, his analyses of the major points in controversy will be edifying to anyone with an open mind.

Posner is often misleadingly branded "conservative" because he was put on the bench by President Reagan (in 1981) and has been the leader of the "law and economics" movement, which holds that law should be shaped by free-market economic theory and cost-benefit analysis. But, in fact, the 60-year-old former University of Chicago law professor is basically a pragmatist with wide-ranging interests and erudition.

And in his libertarian views on the extramarital sex and the lies about sex that formed the backdrop to the Lewinsky crisis, Posner — who disdains "sexual puritanism" — has far more in common with President Clinton’s liberal allies than with those he calls "moralistic conservatives."

Thus Posner asserts that there was nothing very "wrongful" in Clinton’s "trivial sexual escapade" with the more-than-willing Lewinsky; that "only Clinton-haters think Clinton evil"; that some "may be paranoid in the clinical sense"; and that many other conservatives have "a morbidly exaggerated fear of moral laxity." Nor will conservatives welcome his assertions that the Lewinsky affair has done some good by fostering "franker public discourse on matters of sex." (Posner’s 30 books include Sex and Reason, which appeared in 1992.)

Posner faults Independent Counsel Kenneth Starr for "unnecessary invasions of the President’s privacy" by putting too much gratuitous sex in his report to Congress. Posner whacks other Republicans for waxing moralistic about Clinton after having taken "a much softer line on obstruction of justice in the Iran-Contra affair and on sexual harassment in the [Clarence] Thomas confirmation fight." And he sees "something a little crazy about turning the White House upside down in order to pin down the details of Clinton’s extramarital sexual activities so that Paula Jones might have a shot at winning her long-shot suit for redress for an offensive but essentially harmless advance made (maybe) by Clinton before he became President."

Along the way, Posner trashes the Supreme Court for damaging the presidency with its "naive and imprudent" 1997 decision allowing Paula Jones to proceed with her lawsuit while Clinton was still in office, as well as its 1988 ruling upholding the "stupid" independent-counsel statute.

Posner’s benign view of both the President’s sexual escapades and his "irresistible human impulse to conceal" them makes his detailed analysis of Clinton’s crimes all the more convincing. As he sums it up: "It is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of federal criminal law, by 1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to questions put to him by the House Judiciary Committee; 2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed and to secrete the gifts that she had received from him; and 3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason that she had been transferred from the White House to the Pentagon."

In short, "Clinton was guilty of serious crimes, and the behavior of the Independent Counsel’s office, Linda Tripp, and Paula Jones’ backers did not excuse or mitigate that guilt."

Posner shreds the claims that it was improper for Starr to pursue the evidence against Clinton. Starr "was duty-bound to bring the contents of Tripp’s tapes to the attention of the Attorney General," the author notes, and "she was duty-bound to [seek appointment of] someone to investigate the suspicious presidential conduct that the tapes suggested, though it need not have been Starr."

If "the president of a corporation, university, or foundation, or the mayor of a medium-sized city" had flouted the law as brazenly as Clinton did, Posner stresses, his or her "lengthy string of crimes would invite prosecution, especially if the criminal was a prominent person already under investigation, by the same prosecutor, for other possible criminal activity…. Failure to prosecute would send a signal that the legal system smiles at obstructing justice."

As for the President’s legal defense, in Posner’s view it "was grounded in quibbling, hairsplitting, equivocation, brazen denial of the obvious, truncated quotation and quotation out of context, and mischaracterization of the law."

The author is not a particular fan of Starr, who, he says, may have carried "typical hardball prosecutorial methods" to the point of "overkill." But the admittedly incomplete evidence available at this point suggests, in Posner’s view, that Starr’s investigation was "basically ethical." The author dismisses, as "slanders with no credible basis," the depictions of Starr by James Carville, Hillary Rodham Clinton, and others "as a sex-obsessed religious nut, an extreme right-winger, and a Clinton-hater."

Posner also dismantles the bogus claims by hundreds of professors of law and history, among others, that the Constitution authorizes impeachment only for major abuses of presidential power, and not for crimes (like Clinton’s) that were rooted in private conduct.

It may thus come as a surprise — and as a disappointment to some of us — that Posner does not come down firmly on either side of the ultimate question: whether Clinton should have been removed from office. Rather, he stresses that "high crimes and misdemeanors" is so vague and open-ended a standard that no one right answer can be deduced from principle or precedent; it comes down to a question of what would best serve the national interest.

Posner the cost-benefit balancer carefully puts the relevant factors on the scales: "On the one hand, President Clinton engaged in a pattern of criminal behavior and obsessive public lying the tendency of which was to disparage, undermine, and even subvert the judicial system of the United States, the American ideology of the rule of law, and the role and office of the President."

On the other hand, "Clinton acted under considerable provocation," and "the actual impact that his conduct has had or will have on the rule of law and other valued social goods is unknowable and possibly slight." Also weighing against impeachment were public opposition and "the perceived partisanship" of the process.

"It is unknowable," Posner concludes, "whether the good consequences of impeaching and removing Clinton outweigh the bad" — and therefore "the pragmatist would lean against impeachment." Is that how the pragmatist Posner leans? Perhaps. But he doesn’t make it entirely clear.

What Posner does make clear is his indictment of "the emotionality and hypocrisy of the intellectual class": the legions of academics and others who leaped unprofessionally to the barricades to offer partisan commentaries masquerading as professional expertise, including the herd of law professors who joined the President’s lawyers in "spinning a web of sophistries."

Here, too, Posner strains to be evenhanded. He faults conservative intellectuals like Robert H. Bork and William J. Bennett for "their misreading of public opinion, their pessimism, and their hyperbole." But his critique of many prominent liberals — for "the partisanship, precipitance, and moral insensitivity of their commentary on l’affaire Clinton" — strikes me as more devastating.

The whole experience, Posner says, "has engendered doubts as to how many academic specialists in such fields as history, moral and political philosophy, and even law are competent to offer useful and disinterested advice on novel issues of public policy." And that may be the most important lesson of all.