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

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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.

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.

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.

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.

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.

Looking for a good book on the ins and outs of impeachment? Looking to find out what Congress goes through during the whole process? Want to know what the Independent Council does? The pick up a copy the An Affair of State by Richard Posner and you'll find out.

Posner has an excellent work with this book. He is able to remain impartial while reporting the facts. While I may not agree with everything he has written, one thing I can say, Posner's ability to show how complicated things can get certainly had me thinking.

I was impressed by the attention to detail, and Posner's ability to bring each character's personality out in this book. A well-written and well-researched piece of work. Posner has done himself and this country proud.

You can certainly find a slew of books on the subject of impeachment, however you might want to start here first. This book should be required reading of every member of Congress. Remember to keep an open mind in order to judge this book fairly; an I am sure you will be impressed.

I have read Professor Dworkin's review of this book in the New York Review of Books, and Dworkin, while critical of the book, hardly exposes it as a "sham" and a "joke," as one reviewer below suggested. Indeed, Dworkin suggests that the book "has many virtues," and describes it as being "clear, brisk, often amusing, and decorated with an impressive array of quotations and historical excursions, many of which are illuminating." Dworkin expresses his belief that Posner is not a "Clinton hater," and points out that Posner actually regards the Clinton presidency as a "success" in policy terms because it has helped solidify the Reagan Revolution.

Upon analysis, Dworkin's differences with Posner on the key question of the President's liability for criminal offenses are revealed to be rather narrow. Dworkin concedes that "one or more" of the accusations of perjury and obstruction of justice against Clinton may have presented jury questions, and that a jury might have concluded that Clinton was guilty of "one or more of them" beyond a reasonable doubt. As to the charge of perjury before the federal judge in the Jones case, Dworkin acknowledges Clinton's "deposition lies," and only disagrees with Posner's contention that these lies were "material" to the Jones litigation. With respect to the charges that Clinton committed perjury before the grand jury, Dworkin does not challenge Posner's view that the testimony in question was "material," and he even acknowledges that Posner "may be right" to believe that Clinton lied in his grand jury testimony. What Dworkin mainly objects to is Posner's use of the phrase "beyond a reasonable doubt" to describe his degree of confidence that the President committed perjury and obstructed justice. But since Dworkin is not asserting that the President was actually innocent of these charges (as many defenders of the President have), his criticism of Posner's expression of certitude (or near certitude) regarding Clinton's guilt is not exactly earthshaking.

As for Dworkin's claim that Posner may have violated the canons of judicial ethics by writing this book, the canon in question only prohibits public commentary by a judge regarding a "pending" or "impending" case. While it is possible that the President will be prosecuted, the word "impending" normally does not denote something which is merely possible. Nevertheless, Dworkin simply asserts (without any citation to authority) that the term "impending" should be construed to cover "any possible future prosecution that has been publicly debated among politicians and officials and often mentioned in the press, particularly when the judge is prominent and his statements are likely to receive wide circulation." The rule Dworkin has devised is an interesting one, but it is not the rule set forth in the canons, and it is therefore unfair to accuse Posner of a violation of those rules.

This book offers an extremely thorough and careful analysis of Clinton's misconduct in the Jones litigation, the Starr investigation, and the ensuing impeachment. Posner is a bit coy on whether he thinks Clinton should have been impeached, but he is a self-professed pragmatist, and does say on page 195 that a pragmatist would lean against impeachment.

Some of the comments of those readers who disliked this book make me wonder (as Posner does) whether intellectual debate is even possible on a subject as emotionally charged as this one has become. (Posner has some interesting sociological and psychological obervations on why public opinion has become so polarized, which he offers on pages 212-216.) Fallacies, ad hominem characterizations, and misstatements of Posner's positions do not qualify as intellectual opposition to his conclusions. For example, it is not very helpful to an evaluation of Posner's conclusions to point out that he was appointed to the federal bench by President Reagan, or to attempt to impute to Posner the views of a former law clerk or a legal commentator who liked his book. And contrary to the implication of one reviewer, Posner does not advocate criminal prosecution of the President after his term of office; instead, he makes clear his opposition to prosecution, saying on page 194 that it strikes him as a "grotesque prospect." Posner's position is that, unless a President has committed "monstrous" crimes (and Clinton, he says, did not), a President should be "excused from being prosecuted for criminal behavior committed before or during his term of office . . . ." Posner did address the factual question of what kind of a sentence an ordinary person who committed crimes like Clinton's and who was prosecuted by the Justice Department would have received under the Federal Sentencing Guidelines, which use a point system to fix sentences. He did not say that Clinton (or anybody else similarly situated) "deserves" this punishment, only that that the Sentencing Guidelines would have likely yielded at least this length of a sentence for these kinds of offenses.

Unlike Posner, I happen to agree with the Supreme Court's decision in Clinton v. Jones, because I do not think there was a constitutional basis for the temporary immunity the President was seeking. Contrary to what one reviewer said, Posner did not make a "factual misrepresentation" regarding the Supreme Court's decision. Posner's specific point about the Court having failed to instruct Judge Wright to minimize "embarassment" to the President was that the "Justices could have reminded the judge that the soft spot in Paula Jones's suit was the question of injury and that the judge could decide that question before subjecting the President to the indignity of being deposed." (Page 228). Whether or not the Supreme Court should have given this specific reminder to Judge Wright, the fact is that it did not do so, and that Judge Wright allowed a deposition to proceed which proved to be unnecessary to her opinion dismissing the case, and which was not even relied upon in her opinion. As for the Supreme Court's general statement that the "high respect that is owed to the [Presidency]. . . should inform the conduct of the entire proceeding, including the timing and scope of discovery," there is no particular reason to assume that the Court meant by this that Paula Jones should not be entitled to the kind of discovery of other workplace sexual liaisons which is routine in sexual harassment cases. The claim of the reviewer below that Judge Posner "just plain gets it factually wrong" about the Supreme Court's decision in Clinton v. Jones is therefore itself plainly wrong

Posner promises to rip the cover off the impeachment process by sorting through the spin and uncovering the truth of what Clinton was charged with, what he did, and how the impeachment process worked.

As a judge, he does a magnificent job (especially as he completed this book within days of the final vote) of cutting to the quick of the legal charges against Clinton, and examining the evidence that pretty undisputably proves Clinton "guilty".

But, and this is a very big but, his strength as a judge is Posner's weakness as a historian. He assumes, without proving, that the true issue in impeachment is (or should be) the legal issue. He virtually ignores the competing view, that the key issue is (and should be) political. Only by reading this book in combination with Rhenquit's history of the Samuel Chase and Andrew Johnson impeachments can you get a more rounded view.

As a matter of law, Clinton was guilty. However, we were not involved in a criminal trial. We were deciding whether to remove this country's highest elected official. This is a highly political question, to which the legal issues are relevent, but hardly decisive.

By failing to grapple honestly with this dichotomy, Posner's book ultimately falls short of being the definitive work on impeachment it could have been, given his incisive analysis of th elegal issues and the evidence.

Posner uses the Lewinsky scandal as an opportunity to not only analyze its implications but to lambast virtually everyone involved -- from the players to the commentators. A must read for those looking for a rational and not bombastic examination of the scandal. The book also reveals that Posner has no interest in becoming a member of the Supreme Court; this book will piss off everybody.