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President Bill 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 the 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 the 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. This book, reflecting the breadth of Posner's experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton's impeachment ordeal.
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. The investigation culminated on December 19, 1998, in the impeachment of President Clinton by the House of Representatives for perjury before a grand jury and for obstruction of justice. It was only the second impeachment of a U.S. President. The first was the impeachment of Andrew Johnson 130 years earlier, although in 1974 Richard Nixon would have been impeached and convicted had he not resigned after the House Judiciary Committee recommended his impeachment to the full House. On January 7, 1999, the Senate trial of President Clinton began. Truncated and anticlimactic—indeed, a parody of legal justice—the trial ended on February 12 with the President's acquittal. With this, the end of the main legal phase of the struggle that began on January 21 of last year, the record of events analyzed in this book was complete, though the aftershocks (such as Juanita Broaddrick's rape charge and Lewinsky's television interview and book) continue.
Three features of what at first seemed a political crisis of the first magnitude, but that now seems better described as a political drama or even a comedy (for other thanthe participants), hold a particular interest for me. The first is its intersection with issues, particularly of law and morality, that have long engaged my academic interest and attention. The second is its sheer multifaceted complexity—factual, legal, political, and moral—which cries out for the sort of synoptic, compendious treatment that I have attempted in several previous books on cross-disciplinary subjects, such as sex and aging. Not everyone was paying careful attention to the Clinton impeachment drama who should have been, and as a result there is a danger that the history of it will pass rapidly into myth. The third feature that intrigues me is related to the second: the drama has so many "angles," and such an undercurrent of emotionality, that maintaining balance and perspective is an enormous challenge to one's powers of judicious reflection.
Judicious—not judicial. The framers of the Constitution carefully excluded the judiciary (all but the Chief Justice, who presides at the Senate trial of an impeached President) from the adjudication of impeachments. We other judges are confined to the observer role. And the ethical rules of the federal judiciary forbid public comment on pending cases, including, I assume, an impeachment—but I do not discuss any pending cases. One cannot, however, write about the Clinton impeachment and related matters without touching on politically sensitive issues, and in particular without criticizing President Clinton's conduct and that of members of Congress. This might be thought a decisive objection to a federal judge's writing about this subject even if the judge writes qua academic rather than qua judge. The principle that underlies the hypothetical objection, a principle I support as well as recognize as binding upon me, is that judges are not to be politically active. But criticism of the President's conduct, and that of other political actors in the drama, crosses party lines, indeed is nearly universal. I have striven to avoid any hint of partisanship in my analysis, and I hope that to the extent I have succeeded this will neutralize the objection.
Apart from its sheer narrative intricacy, Clinton's ordeal presents a number of distinct but interrelated issues that have to be sorted out and related to facts that are contested and incompletely known, and so in need of being weighed and sifted. There are issues of law, including criminal and constitutional law, the law of evidence, and the substantive and procedural principles that should guide impeachment and impeachment trials. There are issues of jurisprudence, concerning the appropriate roles of historical scholarship and pragmatic reasoning in answering questions of law and policy, the difference between popular and legal justice, and (a related point) the meaning and appropriateness of characterizing impeachment proceedings as "legal." There are issues of morality, both private and public, and of political theory, political history, political science, and the specialized branch of history and political science known as Presidential studies. There are issues that evoke the theory of conflict, or strategy, and numerous perplexing issues of political and cultural sociology, including the peculiar sociology of the "moralistic Right" and of the "academic Left." (These are crude, even offensive, categorizations, but I shall defend them.)
I am unapologetic not only about my decision to write about the struggle to impeach and remove Clinton, despite its partisan overtones and its origins in a sexual relationship widely regarded as tawdry, but also about attempting to write a scholarly book so soon after the event. After? During, really; I began writing in October 1998, when the crisis was very much in medias res and the end could not be foreseen, and I finished on February 16, 1999, four days after the Senate trial ended. To write so close to the event is to write without the perspective that temporal distance enables, without a complete picture of the facts, and without being able to do more than guess at the long-term consequences. Thus it is to write without the possibility of being definitive. But it is also to write with better prospects of achieving freshness and immediacy than if I waited until history had applied its varnish. There is such a thing as distinguished contemporaneous history (oxymoronic as the term sounds), though I don't expect to be compared with Tacitus or Thucydides, or even Suetonius. To write close to the event is also to write with a relative freedom from hindsight bias, though the qualification is important. This book is not a diary, and the judgments in it are informed by knowledge of how the story ends, although not by knowledge of how it will come eventually to be judged by history.
Hindsight bias is a serious problem in historiography. Once a historical episode is declared "closed" (so far as any historical episode can be so described), there is a tendency to see the events that led up to, constituted, and resolved it as inevitable, if not indeed as the product of design. Outcome exerts an irresistible hydraulic pressure on interpretation. Blunders that had happy results for the blunderer are redescribed as brilliant tactical moves, while moves that were intelligent ex ante—were the best that could be devised on the basis of the information available at the time—are redescribed as avoidable blunders. The tendencies that hindsight bias foments were famously denounced by Tolstoy in War and Peace. For him, the basic law of history was the law of unintended consequences. I think there's a lot to Tolstoy's theory of history and that the Clinton-Lewinsky investigation and the ensuing ordeal of the Presidency provide supporting evidence, but that while this is easy to see at present it may become obscured with the passage of time. But no doubt many of the judgments made in this book will some day have to be revised. And a case study, when the case is as multifaceted as this one is, is bound to lack the depth that monographic treatment of each facet would enable. But this particular case study can also be viewed as an empirical test of claims concerning law and philosophy that I have advanced in previous books. Among these are claims for the superiority of pragmatic to formalistic, philosophical, and historical approaches to issues of law and public policy and against the utility of constitutional theory and moral theory in dealing with such issues. A case study is a study (analysis) as well as a case (description). I have tried to do justice to both halves.
The story of Clinton's ordeal is exhilarating as drama but sobering as a commentary on powerful and prestigious American institutions. The story that I shall be telling is a story of the failure of the judiciary, the political establishment, the Congress, the legal profession, and the academic community to cope with a novel challenge. It is also a story of personal failure by Clinton and others. But the institutional failures are the more interesting. We shall see that institutions that look strong may actually be brittle and therefore break when hit from an unexpected angle. This happened with American universities when they were faced with an unanticipated revolt of students in the late 1960s and early 1970s. President Clinton's extraordinary behavior—an explosive mixture of lust and mendacity—sprang an equal surprise on an overlapping set of institutions (universities being implicated in both upheavals), and they couldn't cope either. But because the nation was prosperous and at peace throughout the ordeal, and has a resilience greater than that of any of its institutional components, it was able to weather the storm with what appears to be (although it is too soon to tell, really) minimal damage to the social fabric. Those who consider the stock market an accurate barometer of the nation's social health will say with zero damage.
This book is not a narrative of the ordeal, but Chapter 1 is a narrative, essential to what follows, of the President's conduct in and arising from his affair with Lewinsky. To the extent that the facts are contested, I have indicated both what I think the most probable version is and what its legal significance would be in an ordinary criminal proceeding (for example, if Clinton were the president of a university rather than of the United States). What if any crimes were committed? Are they the types of crime that, given the circumstances—but abstracting not only from Clinton's position as President of the United States but also from the investigative methods of the Independent Counsel—prosecutors prosecute and juries convict for?
Those methods are not discusssed in Chapter 1, but are the focus of Chapter 2, where I review how the Independent Counsel and his allies (including Paula Jones's lawyers and backers), and the President's lawyers and other defenders, developed and as it were marketed their respective versions of the facts. The critical questions here are whether the Independent Counsel committed legal or ethical violations in conducting what amounted to a "sting" operation against the President of the United States, whether the defenders misbehaved as well, and whether any of the misbehavior, prosecutorial or defensive, even if as bad as depicted by the opposing side, has any bearing on whether Clinton would have been prosecuted successfully for criminal conduct were he not President.
The first two chapters should dispel several persistent misunderstandings about the legal significance of Clinton's conduct, such as that no ordinary person would be prosecuted or if prosecuted convicted for what he did, that his only provable misconduct was giving misleading answers to questions about his relationship with Lewinsky, and that a determination of criminal liability requires balancing the defendant's misconduct against any misconduct on the part of the prosecutor. The reader should emerge from these chapters with a clear idea of the legal liabilities of a non-President who committed the acts that the President committed in the aftermath of his affair with Monica Lewinsky. So far as the public record discloses, these acts were indeed crimes, though not as many as the Independent Counsel and the House of Representatives believed if attention is confined to those acts that could be proved criminal beyond a reasonable doubt. It is also possible to regard the Independent Counsel's investigation, though basically ethical so far as appears at this writing, as overkill, given the intrinsic triviality not only of the President's extramarital escapades but also of the Paula Jones litigation, the original scene of the President's criminal violations. Her case was weak, and in any event the courts should not have proceeded with it until the end of Clinton's term of office.
For the hypothetical non-President, the arena for determining guilt and admeasuring punishment would be a federal criminal prosecution for having committed perjury and related crimes of obstructing justice in a federal civil litigation and before a federal grand jury. For President Clinton, once the Independent Counsel decided not to prosecute him criminally before giving the House of Representatives a shot at impeaching him—it is an unsettled question whether a President can be prosecuted while in office—the arena was an impeachment proceeding. The impeachment of a federal officer is authorized only for "high Crimes and Misdemeanors," a term the Constitution does not define. The principal issues bearing on the impeachment of President Clinton are whether commission of a crime is either a necessary or a sufficient condition for the impeachment and conviction of a President; whether the meaning of the Constitution's provisions on impeachment should be regarded as a historical question, to be answered by using the methods of historical inquiry; what weight political and pragmatic considerations should have in an impeachment of the President; and what the procedural rules should be, notably whether the burden of proof required to convict should indeed be the criminal burden of proof beyond a reasonable doubt and whether the House and the Senate should adopt, in advance of impeachment, detailed rules designed to bring impeachment proceedings into greater conformity with the requirements of due process of law.
I consider the history and propriety of "political impeachment," that is, the use of the impeachment process to vent purely political disagreement with the President. I also consider the interrelated issues of the trend toward "postelectoral politics" and of Democratic charges that the impeachment of President Clinton was marred by partisanship—even that it was invalid because the impeachment was voted by a lame—duck Congress. Although political impeachment, I conclude, is indeed improper, the impeachment of President Clinton cannot be written off as a political impeachment merely because the vote to impeach was largely on party lines. There was partisanship on both sides of the aisle.
Nor is impeachment proper, as many argued, only when the President misuses the powers of his office (although to some extent he did). Private acts can have grave public consequences—and with fewer redeeming features than public acts, for example of wartime Presidents, that violate positive law but may in doing so advance national interests. But because I conclude that the impeachment power is not limited either to actual crimes or to some narrow set of public acts enumerated by historical precedent, I have to return to the President's conduct and to attempt (in Chapter 4) to evaluate it in broader terms than those of criminal justice. In particular, the moral dimension of his conduct has to be examined. Here the critical distinction is between private and public morality. Some things that a President does may be immoral yet lack any public dimension, and those probably are not appropriate grounds for impeachment. Others, however, come within the scope of "public morality," the set of moral duties that is attached to an office or to an activity that is undertaken voluntarily. In emphasizing these duties I invert the tradition, associated with Machiavelli, that emphasizes that the scruples of everyday life may be inappropriate in a political leader. Political leadership may add moral duties to those incumbent on a private individual rather than diluting the private duties.
The set of moral duties attached to the U.S. Presidency is broad. It includes both executive moral duties (moral duties that relate directly to the performance of a President's tasks) and exemplary moral duties, that is, moral duties arising from the symbolic dimension of the Presidency. Some of a President's moral duties of either type are so important that their violation might be grounds for impeachment and removal even if he committed no crime. The Lewinsky affair and its aftermath involve the exemplary much more than the executive duties of the Presidency, and the exemplary duties are entwined with the duties of private morality. Only toward the end, with the cruise-missile attack on Iraq during the week that culminated in Clinton's impeachment, did the ordeal begin to degrade his effectiveness as the federal government's chief executive.
President Clinton committed serious breaches of private morality. But they were not the ones to which he confessed: having an "inappropriate" intimate relationship with Lewinsky and misleading his family, friends, subordinate officials, and—placed last in his contrition litany—the American people by denying the existence of the relationship until a DNA test of the semen stains on one of Monica Lewinsky's dresses forced his hand. It is not clear whom the relationship wronged. And Clinton misled very few people—though we shall see that the liar whose lies are not believed may, paradoxically, be a more serious violator of the moral code than the credible liar.
The serious breaches of private morality were Clinton's violations of federal criminal law, which were felonious, numerous, and nontechnical. How far they should be considered serious breaches of public morality as well depends on one's conception of the Presidency. An older view, first clearly articulated and defended by Aristotle, exemplified in American history by the character and career of George Washington, and very damaging to President Clinton, conceives of the President as a moral leader and the symbol of our noblest aspirations. Holders of this conception of the Presidency are bound to attach great weight to the fulfillment of what I am calling the President's exemplary moral duties. A newer view—call it "postcharismatic politics"—is that the American people have attained a level of political maturity at which widespread disillusionment with the moral and intellectual qualities of our political leaders will not cause the sky to fall. The fewer and less demanding the exemplary or "role model" duties assigned to the President, the less plausible it is to base impeachment on a violation of such duties, though when the full range and consequences of President Clinton's conduct are considered it becomes arguable that he disgraced and undermined the Presidency to a degree that warranted his removal from office.
Having considered the President's conduct both in detail and as a whole, as well as the appropriate scope and form of an impeachment proceeding, I ask in Chapter 5 whether he should have been impeached, as he was, and convicted, as he was not. These questions are difficult to answer because of the inescapable vagueness of the standard for impeachment and the importance of imponderable factors in applying the standard. 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, 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. And a decision for or against impeachment rightly involves pragmatic considerations to a degree that would be inappropriate in ordinary judicial proceedings. Those considerations are imponderables too. They include the effect of impeachment on the power of the Presidency and hence on the balance of power among the different branches of the federal government and between federal and state government; if the effect is to shift power from the President to Congress (by no means a certainty) or the states, whether it is a large or a small shift; and whether it is a good or a bad thing to make the Presidency somewhat stronger or somewhat weaker relative to other parts of government and perhaps relative to the private sector as well.
Chapter 5 also picks up and continues the discussion in Chapter 3 of procedural issues relating to Presidential impeachment. I consider the constitutional and prudential issues that would have been created by either a joint congressional resolution of censure or a Senate resolution of censure, as an alternative to conviction and removal from office. I consider whether it would have been proper for the Senate to abort the trial of the President by adjourning it right after it began, as a number of Democratic Senators (and the White House) wanted the Senate to do, or to combine a judgment of acquittal with a finding that the President had engaged in the misconduct alleged in the articles of impeachment, as a number of Republican Senators wanted the Senate to do.
A remarkable feature of the Clinton-Lewinsky saga, and the focus of Chapter 6, has been its polarizing effect; it touched off a Kulturkampf. There is a parallel (reminding one of Marx's dictum that every great event or character in history appears twice, the first time as tragedy and the second as farce) to the Dreyfus case. Alfred Dreyfus, it became clear not long after his conviction and imprisonment, was innocent. But though himself conservative and patriotic, albeit Jewish, he had become so potent a symbol of everything the Right hated that it had to deny his innocence. The conduct of the Right in the Dreyfus Affair was in turn so odious to the Left that the affair became for the Left as potent a symbol as it was for the Right. On the basis of the facts developed by Starr's investigation and honed and winnowed in the House and Senate proceedings it appears that Clinton is as guilty of serious criminal conduct as Dreyfus was innocent. But Clinton's opponents on the Right were so odious to the Left that many on the Left, including a number of prominent intellectuals, denied (or evaded the issue of) his guilt, while Clinton himself, though a centrist rather than a leftist—indeed, though arguably the consolidator of the "Reagan Revolution"—became for many on the Right the preeminent symbol of all they hate. Why Clinton had this polarizing effect is an important question in its own right. The key to the answer, I argue, is that the exposure of Clinton's private life made him a symbol not merely of a political position (it is difficult to identify him with a political position), but of a way of life, and an attitude toward personal responsibility, revolting to much of the Right and congenial to, even defining of, much of the contemporary American Left. The debate quickly became frenzied and irrational. The rapidity and extremity of the polarization are illuminated by a recent literature in signaling and social-norm theory that shows how "norm entrepreneurs" can induce people to take sides on issues of little intrinsic moment to them.
In Chapter 7 I try to extract the lessons of the ordeal, apart from those evident from previous chapters. One is the inability of some public intellectuals to resist being caught up in the irrational Manichaeism of the popular and political reactions to Clinton and his troubles. Representative figures of the academic Left have been notable for the partisanship, precipitance, and moral insensitivity of their commentary on l'affaire Clinton. Representatives of the academic Right have been notable for their misreading of public opinion, their pessimism, and their hyperbole. The center has done better, and the much-maligned media pretty well. The episode 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. It has engendered doubts about the utility of so-called public intellectuals. It has confirmed suspicions (mine at any rate) that normative moral theory, and cognate forms of legal and political theory, have little to contribute to the public life of the nation. A number of legal professionals, both as participants and as observers, have behaved rather ignominiously as well.
Another lesson to be drawn from the ordeal is the remarkable degree to which political strife stirred up by an issue without clear precedent resembles war as elucidated by military theorists and historians (above all Clausewitz) and by novelists like Stendhal and Tolstoy. Clinton's struggle to save his Presidency was marked by intense emotion, by sudden and drastic reversals of fortune, by betrayals, concealments, and mis- and disinformation, by gross blunders induced by radical uncertainty that redounded to the advantage of the blunderers, by espionage ("leaks"), mood swings, and the dominance of chance, and by difficulty in checking one's headlong advance in time to avoid a devastating counterattack. The ordeal is unique in its particulars, but it has a structure that the study of warfare in the Clausewitzian tradition illuminates. Reflection on the commonalities between political and other forms of struggle may help us toward a more general understanding of human conflict and enable the country to avoid a repetition of some of the mistakes made by people who became involved in the Clinton-Lewinsky mess or its politico-legal aftermath.
An important lesson is the inability of a Supreme Court none of whose members has substantial political experience to deal adequately with cases that have a heavy political charge. In retrospect the Court's decisions upholding the constitutionality of the independent counsel law and allowing Paula Jones's suit against the President to go forward before he left office appear as naive, unintended, unpragmatic, and gratuitous body blows to the Presidency. Had either decision gone the other way—or even if the decisions had been written more narrowly (for example, if the Court had left open the question whether the independent counsel law can constitutionally be applied to the President, or had instructed the judge in the Paula Jones case to defer as long as possible any inquiry into the President's sex life)—Clinton's affair with Monica Lewinsky, an affair intrinsically (that is, as long as it was secret) devoid of any significance to anyone except Lewinsky, would have remained a secret from the public. The public would not have been the worse for not knowing about it. There would have been no impeachment inquiry, no impeachment, no concerns about the motives behind the President's military actions against terrorists and rogue states in the summer and fall of 1998, no spectacle of the United States Senate playacting at adjudication. The Supreme Court's decisions created a situation that led the President and his defenders into the pattern of cornered-rat behavior that engendered a constitutional storm and that may have embittered American politics, weakened the Presidency, distracted the federal government from essential business, and undermined the rule of law.
I say "may have" because only time will tell whether and to what extent any of these fell consequences will come to pass. It is not even certain whether the rule of law has been damaged or actually strengthened by Clinton's lies, denials, evasions, and pettifogging defenses. And some of the immediate consequences, at least, have not been bad at all. The operation of government has become more transparent; leading elements of the U.S. government, in particular the White House and both houses of Congress, have been seen for what they are. The rawness of political competition has been revealed. Layers of hypocrisy have been stripped away. Plaster saints have been shattered. The general public has been made a little more conversant with issues of legality, ethics, and politics, and thus more civic minded, though because the public's attention span for public issues is limited, the educative effects of the episode may soon dissipate. The complexity of the legal issues, moreover, has resulted in a certain amount of confusion, for example about how perjury is proved and the relevance to criminal liability of irregularities in the prosecution, that I shall try to dispel.
A good effect that probably will be lasting is the encouragement of franker public discussion of sex. The residuum of sexual puritanism in the United States is dysfunctional in a society in which contraceptive advances and the emancipation of women from their traditional role have destroyed the social foundations of traditional sexual morality. Among the more absurd assertions made in the public debate over the crisis are the Right's charge that the revelation of Clinton's affair with Lewinsky has weakened parental control over the sexual behavior of their children and the Left's charge that the Starr Report is voyeuristic and pornographic. People who say these things (and mean them, as perhaps few do) don't understand the family and sexual culture of late-twentieth-century America.
Above all, the ordeal has exposed institutional weaknesses in time for the nation to try to correct them before serious damage is done. They include the incapacity of the academic community, including some of its brightest lights in law, history, moral philosophy, and political theory, to contribute helpfully to a governmental crisis; the limited light that the study of history can shed on contemporary events; the emotionality and hypocrisy of the intellectual class and the mediocrity of the political class; Congress's inability to conduct a Presidential impeachment inquiry that the public will accept as procedurally fair; the hypertrophy of American law (the use of sexual harassment law, and the independent counsel law, to harass officials); the poor performance of many of the princes of the trial bar; and, as I have already stressed, the ineptitude of an unpragmatic Supreme Court locked in a backward-looking jurisprudence, a Court whose decisions all unwittingly incubated a political crisis.
Not all these weaknesses can be cured; perhaps none can be, except to let the independent counsel law expire. It is obvious, for example, that the House and Senate need better rules for the governance of impeachment proceedings; it is unlikely that either house has a sufficient sense of urgency to undertake such a project. But it is good to know where we are weak, because offsetting adjustments in the institutional framework or even individual mindsets, or other defensive measures, may be feasible. In any event, the timing has been fortunate. The effect of the Court's decisions in undermining the Presidency has become visible at a time when the nation can get along for a few years with a somewhat weakened Presidency. And the federal government has been distracted at a time when divided government; complacency-breeding peace, prosperity, and improvements in social indicators; a salutary recognition that the federal government has only limited power to solve difficult problems; and the President's lame-duck status have all made the prospects for active government dim at best. Were this a time of crisis, the Clinton-Lewinsky scandal might have been stillborn—unreported or ignored. (And it is unlikely that Clinton would have been elected or reelected President at a time of national crisis.) It is not a time of crisis. The nation seems to be running nicely on autopilot just now; a symptom is the total indifference of the stock market, and the economy more broadly, both national and international, to the "crisis" of Clinton's Presidency. Nineteen ninety-eight was a good year for staging an edifying political drama.
|1||The President's Conduct|
|2||Prosecution and Defense|
|3||The History, Scope, and Form of Impeachment|
|4||Morality, Private and Public|
|5||Should President Clinton Have Been Impeached and If Impeached Convicted?|
|7||Lessons for the Future|
|8||The Balance Sheet|