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BOOK REVIEW:  AN AFFAIR OF STATE:  THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON by Judge Posner

Today we take a break from our regularly scheduled programming about qui tam claims under the federal False Claims Act.   We will look at some more general stuff about lawyers, litigation, legal ethics, courts, and government as we sometimes do.  This I will do in the form of a book review — only the second I have done in the more than 12 years of this blog.  While the book does not pertain directly to false claims litigation, it is something that should be of interest to lawyers and laypersons alike; the book is AN AFFAIR OF STATE:  THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON by Judge Posner.

The relevance of this book to current events should be apparent and, indeed, that is one of the reasons why I decided to read it in the first place.  But I was not prepared for how relevant a book about the last Presidential impeachment imbroglio would be to the current impeachment imbroglio, especially in terms of the legal ethics involved.  In retrospect this should not have been surprising.  For one thing Presidential impeachments have been very infrequent events; there are only three examples in the history of the United States – at the time Posner wrote this book there were only two – which means each Presidential impeachment will be relevant to every other Presidential impeachment.

Perhaps if we had had a dozen or so Presidential impeachments, they could be organized into various subcategories. (By now I assume, by the way, that most Americans understand that Nixon doesn’t count as a Presidential impeachment because he resigned before he could be convicted in the Senate.)

Second, I consider Judge Posner one of the most astute observers of  society.  His interests extend far beyond law and legal ethics and reach more or less every area of human endeavor.  I would wager, therefore, that he had a hunch that Presidential impeachments (and perhaps political messes) were going to be more frequent in the future.   (Indeed, he discusses the idea of “post-electoral politics” in the book).

Finally, I shouldn’t have been surprised because, as King Solomon states in Ecclesiastes 1:9: The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.

Any review of a book by Judge Posner should begin with a quick discussion of his career.

BACKGROUND ABOUT RICHARD A. POSNER

I provide this background about Judge Posner for my non-lawyer readers, because I am confident that all lawyers are at least familiar with his name and the fact that he was (is) one of the most respected Judges in the history of the English system of laws.  It turns out, however, that defining Judge Posner is not as simple as that.  From one point of view, of course, he was a federal appellate Judge who sat on the Seventh Circuit Court of Appeals from 1981 to 2017.  During that time he authored around 3,400 (!) opinions, and he did so with verve and a style all his own.

But to describe him as a very influential Judge and stop there does the man an injustice.  By his own admission (found in William Domnarski’s fine biography) judging was never more than a “day job in the Hollywood sense.”  In addition to his demanding day job, he maintained a lecturer position at the University of Chicago School of Law and authored hundreds of law review articles during that 36-year period.  He is in fact the most frequently cited legal scholar of the 20^th century.

On top of all that he has written more than 40 books on a range of topics only tangentially related to law, including books about sex, plagiarism, asteroids, English literature, and … the impeachment of President William Jefferson Clinton, which is the subject of this book review.

THE BOOK ITSELF

Judge Posner’s book was published in 1999, only months after Clinton was acquitted in the Senate.  In the introduction, he notes that he began writing the book in October of 1998 and finished in February 16, 1999, a mere four days after Clinton was acquitted in the Senate.  As he further notes in his introduction – and I agree with him – this proximity to the actual events avoids some of the usual problems associated with historiography, such as hindsight bias.

This brings me to the topic of Judge Posner’s writing style.  In his written opinions, as well as in his books, he takes a unique approach to writing.  His approach to judging and writing is, I believe, calculated to force lawyers and judges to rethink how they approach (and write about) the law.  He was famous for refusing to use the much-maligned Blue Book of Legal Citation; instead, he prepared his own citation manual, which was two-pages long.  The Posner citation manual was itself attached to a law review article that was about 10 pages long.  We will return to his writing style again and again throughout this review, by the way, because there is no way to separate the man (or his work) from his style.

ORGANIZATION OF THE BOOK

Posner (kind-of) eschews the usual detailed organization of a book of this length.  (It is just under 300 pages).  His book is instead organized into only eight chapters, each of which has its own subparts that are unlisted in the table of contents.  The eight chapters are: (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? (6) The Kulturkampf; (7) Lessons for the Future; and finally (8) The Balance Sheet.

The book is much more than a mere narrative of the ordeal; although some form of narrative is necessary, the narrative is largely limited to Chapter 1, which primarily covers the public record (i.e., the 8,000 pages of Ken Starr’s investigation).  The book also covers, in various sections, the actual crimes (there are some serious ones) committed by Clinton (and whether those crimes would be prosecuted if Clinton had been anyone other than the President); the legal and procedural standards for Presidential impeachment; the range of punishments possible for a President who is impeached; the performance of the lawyers involved in the case … and the golden stripes on the shoulders of Chief Justice Rehnquist’s black robe.

You read that right: Chief Justice Rehnquist’s robes – famously adorned with four yellow stripes on each sleeve – get a penetrating analysis in one of Posner’s intellectual wanderings.  These wanderings, by the way, are one of the most fascinating and engaging elements of Posner’s style – he writes in a manner that is at the same time highly organized and stream-of-consciousness; it must be seen to be believed.

Judge Posner writes: “Judges, including the Justices of the Supreme Court have, for as long as anyone can remember, worn plain black robes.”  (It feels a bit tawdry to say this, but he may in fact be wrong about judicial robes being only black.  The Judges of the Maryland Court of Appeals wear red robes — actually, they are scarlet and not red — and have been so adorned since 1976.

The adoption of red robes in 1976 was in recognition of the bicentennial of the United States and — perhaps paradoxically — of the prior use of red scarlet robes by Judges in Colonial America.

According to a history of these robes, then-Chief Justice Taney recollected that when he had been sworn into the bar around 1796:

             “The first session of the General Court, after I went to Annapolis, made a strong impression upon me. The three judges, wearing scarlet cloaks, sat in chairs placed on an elevated platform; and all the distinguished lawyers of Maryland were assembled at the bar.”  

For the sake of completeness, a history of Judicial Robes compiled by the Maryland Court of Appeals contains some evidence that Judges in Massachusetts and Maine also wore scarlet robes in the 1760’s.

At any rate, Posner shares his opinion about Rehnquist’s robe in plain language that is a little surprising at first.  After all, at the time this was written Posner was (I think) the Chief Judge of the Seventh Circuit Court of Appeals and Justice Rehnquist was the Chief Justice of the United States Supreme Court.

It therefore took guts, I think, to write:  “The most solemn form of American trial was thus presided over by the highest judge in the land dressed in a funny costume.”  And in the conclusion he returns to Justice Rehnquist’s costume when describing the “high drama” of the “Clinton mess” as “Wagnerian in intensity and protraction.”

But then, why would he not share his opinion about Rehnquist’s robe?  What could Rehnquist or anyone else really do to Judge Posner at that point?  I suppose they could give him the cold shoulder at Judicial Conferences and so forth…but that’s about it.

THE MAIN POINTS OF THE BOOK

Because many of the chapters overlap, I have organized the remainder of this book review around what I see as the central themes of the book and its most important contributions to …. To what?  To our system of laws?  To our system of government?  No, this book is a contribution to American society.

The Crimes Committed by Clinton and whether those crimes would be prosecuted if Clinton had been anyone other than the President

 Judge Posner points out early on how Clinton, his legal team and their “fellow-travelers” among public intellectuals were able to successfully muddy the waters about the true nature of the impeachment.  Posner also spares no one in his critical analysis of the various arguments offered.     

Chief among his targets are the public intellectuals.  He notes that the public intellectuals involved failed to contribute anything constructive to the debate; he describes wild public statements made by both left-leaning and right-leaning commentators and then picks those statements apart to show their complete irrationality.

And the answer is yes, normal people do get prosecuted for what Bill Clinton did, all the time.

The Distinction (and Similarities) Between Private Morality and Public Morality: Politicians are Expected to Lie

This books is fascinating for its discussion of the distinctions (and similarities) between private morality and public morality.  Posner points out (and I assume that no thinking person would argue with this) that political leaders generally – and the President of the United States specifically – must lie when necessary and must therefore commit serious breaches of private morality in order to fulfill their duties.  An example that comes to mind is one of international diplomacy.  No thinking person believes that any nation-state enters into a treaty with another nation-state for any reason other than its own selfish interests.  Human history is replete with evidence for this proposition, as well as another important proposition:  once a treaty is in effect, the nation-state parties generally continue to abide by it only as long as the results continue to be in the interests of the nation-state.  Treaties are ignored and even broken outright, and not only when it is necessary, but whenever it is convenient for one of the parties.

Individual citizens of the various nation-states expect (in fact demand) that their leaders will break the rules of international treaties, even though breaking ones’ promises is considered a serious violation of private morality.  So the fact that a President lies (and commits a breach of private morality) should not be surprising; it is rather a part of the job description.

The above example is a clear-cut one, but Posner goes on to explain that violations of private morality by a President can in some instances violate public morality.  In fact, he concludes that is exactly what Clinton did.

Not all Breaches of Private Morality by a Politician are Equal

Clinton’s lie about Monica Lewinsky was not the sort of lie people expect politicians to tell, and not only because it served no greater purpose than Clinton’s own selfish interests.  Rather, it serves as a clear-cut indicator that Clinton had a highly-flawed personality.

Another example Posner gives of Clinton’s poor morality is his (Clinton’s) unabashed involvement of other people – most of whom were drawing a government salary – in his violations of private morality.  Betty Currie, for example, who served as the President’s loyal personal secretary for many years before he became President, was mercilessly roped into the conspiracy by Clinton.

Any leader worth his salt should have refused to rope in such a loyal, low-level employee.  Clinton took advantage of Ms. Currie’s dedication and repaid her for her dedication by exposing her to enormous legal fees and the possibility of prison time.  But he didn’t do this once and he didn’t do it just to Ms. Currie, and the fact that Clinton did this time and again shows a truly ugly side to his personality.

Indeed, there are many ugly facets of Clinton’s personality, as the Clinton impeachment showed.  Another ugly facet was his continued lies even when no one believed him.  As Posner points out, everyone lies at some point in life.  To do so is not necessarily a breach of private or public morality.  Like a politician, every adult recognizes that lies of a certain type are in fact required in some situations.  But to continue to lie to everyone, even after no one believes you, and after your lies have been disproven by incontrovertible physical evidence – here the stain on Monica Lewinsky’s dress – shows a serious character flaw.

Moreover, to date Clinton has never, at any time, admitted any wrongdoing.  Just look at his confession:  he confessed to an “inappropriate relationship” with Lewinsky and to misleading his family, friends, subordinate officials and the American people.

As Posner notes, it is telling indeed that the American people were placed last in his contrition litany.

Stay tuned for Part Two of Two….