Judging Clinton

An Affair of State is Posner’s analytical excursion through the Lewinsky scandal and the political, cultural, and legal responses that scandal inspired. There is plenty of fluid prose, along with a good deal of allusive renaissancery about “the availability heuristic” and Immanuel Kant and “signaling and social-norm theory.” To which typically Posnerian charms the judge here adds an even more enticing lure: his deceptively friendly bottom line.

It is Posner’s view, advanced with an air of detached bemusement, that nearly all the principals in last year’s uproar — pro- and contra-Clinton — were “fools, knaves, cowards, and blunderers.” That the commentary provided us along the way by pundits, lawyers, and intellectuals, in particular, was “frenzied and irrational,” ignorant or dishonest. That the president should never have been subjected to a sex harassment lawsuit while in office. That such crimes as the president committed in the course and after-math of that lawsuit, while “reprehensible,” should never have been investigated under the ill-conceived independent counsel statute. That in Clinton’s subsequent House and Senate ordeal, “the pragmatist would lean against impeachment.” And that the entire episode, which so recently appeared “a political crisis of the first magnitude,” now, in retrospect, seems just a measly passing “drama.” Or a “comedy.”

As it happens, of course, this much is not a novel judgment. In fact, it very closely resembles the safe, dead center of respectable American opinion at the moment: Clinton is badly flawed, but the effort to remove him from office was ludicrous hysteria — pretty much what any self-respecting, vaguely au courant but politically inert New York Times subscriber already believes. Or, more precisely, what he thinks he should believe. And imagines he would believe had he paid genuine attention during the Lewinsky imbroglio and bothered to sort out the issues for himself. Flipping through An Affair of State, such a fellow will no doubt be immensely flattered to find his guesswork assumptions about the scandal endorsed — and accorded the status of high philosophical “pragmatism” — by a whip-smart federal judge who has freshly reviewed the evidence, apportions blame across the board, and claims only to be attempting a work of “distinguished contemporaneous history” without “any hint of partisanship.”

Except that Posner has in mind something vastly bolder than ratification of the existing consensus. Unsuspecting readers beware.

A prudent judge descends from the “rigid formalism” of principle, precedent, and other “abstract rules,” Posner advises, to make “closer engagement with the particulars” of a given case. Connoisseurs of Lewinskyiana will thus be surprised by the extent to which, in this given case, Posner feels free to offer conclusions of fact that the public record either cannot sustain or actually refutes. He reports without qualification, for example, that in January 1998, when Kenneth Starr’s agents first confronted Monica Lewinsky, they offered her immunity from prosecution if she would “agree to record conversations with Clinton and [Vernon] Jordan.” But this allegation has been hotly disputed by the independent counsel’s office, and its truth has yet to be established. Posner says Clinton “testified falsely” when he “denied discussing with [Betty] Currie the recovery of gifts” from Lewinsky, and that he “clearly and materially lied when he said that he had never had an erotic encounter with Kathleen Willey.” One wonders how the judge can know such things for sure.

And one wonders why he seems not to know certain other things. Posner calls it “plausible, though not proven” that Sidney Blumenthal was the source of slanderous gossip about Lewinsky being a deluded stalker. But it is proven beyond a reasonable doubt. Likewise, Posner thinks it remains “unclear” whether Clinton’s second “We were never alone, right?” conversation with Currie occurred “before or after” the president knew Starr was investigating his relationship with Lewinsky. Lots of people make this mistake, but that’s no excuse: The conversation in question took place Wednesday, January 21, 1998, many hours after Clinton had been alerted to a detailed Washington Post story disclosing Starr’s new designs. And so on. Mere precision — “closer engagement with the particulars” of last year’s controversy — turns out not to be Judge Posner’s paramount concern.

What that concern might truly be is implicit in a second striking feature of An Affair of State: the author’s spectacular impiety. House majority whip Tom DeLay, Posner says, is an “impeachment-happy” hothead. Senators as a group, he says, are “inattentive” and “biased,” most all of them “neither able nor willing” to fulfill the impeachment responsibilities entrusted them by the Constitution. Chief Justice Rehnquist is mocked in this book, no less than three times, for the clothes that he wears. And Posner derides the entire Supreme Court for its “ineptitude,” for its “backward-looking jurisprudence,” for its “naive” and “gratuitous” rulings against presidential authority.

Which brings us to the president himself. Bill Clinton reminds Posner “of how tyrants exhibit their power by forcing their subjects to express agreement with lies that no one believes.” Clinton “flaunts his religiosity, but gives religion a bad name.” Clinton demonstrates “a radical deficiency of moral courage.” Clinton has only “splinters of a fractured personality.” Clinton has “character flaws weird enough to have incited a search for psychiatric explanations.”

Remind yourself that Richard A. Posner is not a wiseacre journalist or a late-night comic, but the life-tenured chief judge of a federal appellate court — a leading light of the judicial branch. And then try to recall when last a senior official used such brutal words as Posner’s to describe his peers and superiors in public service. The answer is: never. There isn’t even a name for this custom in America; it simply isn’t done. We assume that our public men will decline to deprecate themselves as a uniform class of clowns — or worse — in a “comedy” of organized democracy. We assume it because we find the suggestion insulting. We still, even after 1998, do not believe that the project of American self-governance has become a vulgar and unimportant joke.

Yet Posner all but explicitly belittles this objection as so much retrograde sentimentality. A cheerfully cynical realism about national politics is his preferred approach, and it thoroughly colors his review of the debate over Clinton’s impeachment. He has no patience with either side.

Arguments offered last year in the president’s defense? Posner shreds each, in turn, with gusto. The attacks on Ken Starr were all “slanders with no credible basis.” Posner finds preposterous any suggestion that Clinton might be technically innocent of his alleged crimes, and he calls the claim that such charges are only rarely prosecuted an outright fantasy. Those hundreds of academics who delivered testimony and published petitions contending that tradition and the Constitution would be ripped asunder were this president removed from office — they get a swift whack of the judge’s gavel. No scholar “who had bothered to examine the history of impeachment in the United States could have written or signed” such stuff. Posner admits that the House impeachment articles against William Jefferson Clinton were fully and properly grounded in both fact and law.

And why not then convict him? Why would our “pragmatist” judge still “lean against impeachment”?

Because, first and least, Posner is disappointed that the campaign against Clinton was what he takes to be an over-heated Kulturkampf energized primarily by “moralistic conservatives.” According to Posner, these conservatives hated Clinton long before anyone had heard of Monica Lewinsky. They hated him for his positions on sex-related policy questions: abortion, feminism, homosexuality. So when Lewinsky finally did appear, adding adultery to the mix, these conservatives tried to expel the president from Washington purely because he was a libertine. The movement reflected a “residuum of sexual puritanism in the United States.” Which Posner considers “dysfunctional.”

Adultery is “normative,” he comforts us. And Clinton’s adultery was of the best variety. Fellatio on the side, Posner notes, is “securely contraceptive, relatively unlikely to transmit a sexually transmitted disease, and (for most men and women) less emotionally intimate than vaginal intercourse” and therefore “less threatening to a marriage.” Phone sex, Posner adds, does “better yet on these dimensions.” And that business with the cigar? “Radical feminists” should welcome the president’s initiative, here, as an “implicit endorsement of the dildo.”

Golly. How could we have overlooked such virtue?

There was a less philistine argument available to conservatives, Posner offers, one they could have used instead of ranting about sex, sex, sex. They might have said that 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.” They might have said Clinton’s behavior was a “powerful affront to fundamental and deeply cherished symbols and usages of American government, an affront perhaps unprecedented in the history of the presidency.” They might have said Clinton cultivated “a deep disrespect for the presidency.” They might have made “the most powerful case for impeachment.” But they didn’t, Posner complains.

In fact, some of us witless moralists did make precisely this case, at extended length, and never once in the process suggested that promiscuity was an impeachable offense. But the force of even this “most powerful” argument — the crux of which Posner accepts as true — is not force enough, he declares. And here the judge’s contempt for Tom DeLay, William Rehnquist, and all the rest at last rises to the level of coherent theory.

Rather outlandish theory. For in Posner’s eyes, our public men, the president included, might be every bit as bad as the worst you can say about them. And he means to persuade us that it still won’t matter. Morality is “not central to our politics and attitudes” any longer. The nation is “running nicely on autopilot just now.” We are “sophisticated.” We 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.” Yes, Clinton has “defiled” the presidency. And, no, it’s not worth troubling ourselves to do anything about it. He’s only the president; most of us “do not and should not care about preserving the dignity of his office.”

Really? Clinton’s defenders have never dared make an argument so extreme. Clinton’s critics, it’s safe to say, will never accept such an argument. And while it is true that the great, muddled rest of the country did last year “lean against impeachment,” there is no evidence that theirs was quite the coruscating pragmatism that Chief Judge Posner extols. These are the people who still take tourist trips to the White House, even today, and walk through its rooms in a reverent hush, without ever having been asked to keep quiet. They seem not yet to be as “sophisticated” as Posner imagines. We may be thankful for that, at least.

David Tell is opinion editor of THE WEEKLY STANDARD.