The Investigation, Impeachment and Trial of President Clinton

By Richard A. Posner

Harvard University Press. 276 pp. $24.95

How would a distinguished jurist have ruled in the impeachment trial of William Jefferson Clinton? We will never know, because the Senate trial produced a pair of box scores rather than an opinion, and because the senators, writes Richard A. Posner, were neither distinguished nor judicious. For that matter, the presiding judge, Chief Justice William H. Rehnquist, brought something less than the last ounce of dignity to the trial. Rehnquist had grown bored with his unadorned black robe and therefore outfitted his sleeves with gold stripes, which were inspired by a costume he once saw in a production of Gilbert and Sullivan's "Iolanthe." "The most solemn form of American trial," writes Posner acidly, "was presided over by the highest judge in the land dressed in a funny costume."

We do, fortunately, have a distinguished jurist's opinion in "An Affair of State," which amounts to a retrial of the president with Posner on the bench. One could scarcely imagine a more fitting judge. Posner is chief judge of the U.S. Court of Appeals for the 7th Circuit; he is the author of seemingly numberless books and articles, on subjects that include the intersection of sex, morality and the law; he is possessed of one of the most synoptic and probing intellects in the country, or the world. That he does not flinch from raining scorn on the Supreme Court and even on the chief justice (to whom Posner is nominally an underling) suggests the sharpness of mind, independence of spirit and biting wit that make his book an intellectual feast. At last, something good has come of the Clinton-Lewinsky-Jones-Starr affair.

The book is, as one might hope, judicious. Posner is interested in weighing and sifting the case's many elements rather than in pontificating. He delights in spearing bad arguments, of which he finds many, particularly on Clinton's side; but where the case is close, Posner is content to be of two minds. Should Clinton have been impeached? Should he have been convicted? Posner leans toward impeachment and against conviction, but he does not pretend the call is easy, and he does not resolve his doubts.

Regarding Clinton's conduct, on the other hand, he is unequivocal: The president was guilty of serious crimes, including copious perjuries and some obstructions of justice. Clinton's violations of federal law, says this federal judge, were "felonious, numerous and nontechnical." But to what extent were they also grave, as opposed to superficial, breaches of public and private morality? After all, the public seemed none too upset.

Posner has no time for moralists, such as William J. Bennett, who viewed Clinton as a sexual reprobate and a threat to the moral health of the young. "It is very difficult for pious people like Bennett to believe that people can behave themselves without having a strong sense of moral seriousness, but apparently they can," he says. He views Clinton's adultery and the initial denials as not so terrible, morally. Worse was that Clinton's lies involved, endangered and smeared other people.

Worst of all was that Clinton kept right on lying after having been exposed. "Truth is an important social value, so we want people to respect rather than flout it," he says. "The liar who hopes to convince with his lie does not deny the reality of truth and falsehood; indeed, truth is the fulcrum that makes his lie effective. The liar who lies not to convince but to save face or to flaunt his power is frightening; he appears to be challenging a fundamental and indispensable value of civilized society." And so the folk wisdom represented by the moderate Republicans in the House, who wanted a confession much more than they wanted an impeachment, turns out to have been right.

The trouble was that legal formalism short-circuited the ancient mechanism of confession, disgrace and forgiveness. If Clinton had confessed, he would have admitted to criminal offenses, which might have landed him in jail. "As the crisis ticked on, month after month, it became an increasingly unrealistic option for Clinton to come clean, to admit that he had lied repeatedly, to invite criminal prosecution, and to throw himself on the mercy of Congress." Clinton, who cared only about survival, and legal formalism, which cared only about adherence to the last letter of the law, drove each other toward nihilism.

Surveying the wreckage, Posner sees institutional and personal failure on nearly every side. The working press acquitted itself well, he thinks. But the judiciary, the political establishment, Congress, the legal profession, the pundits and the academic community proved brittle and inept when hit from an unexpected angle. The formalism of the Supreme Court--in ignoring the dangers of the independent-counsel law and in requiring a sitting president to defend himself against a lawsuit--was matched by the formalism of Clinton's attackers, whose mantra was that no felony should go unpunished.

"A large majority of the public, it turned out to the surprise of Clinton's attackers, does not take such an austere, rigid, Kantian view of the rule of law," writes Posner. The public wanted a balance between the legal absolutism advocated by Clinton's Republican critics and the legal libertinism suggested by Clinton's more extreme defenders. "We might call that balance 'pragmatism,' " says Posner. "We have learned that too much law can be a bad thing." Refreshing words, especially from a judge.

Jonathan Rauch, author of "Government's End: Why Washington Stopped Working," forthcoming in December.