On Top of the World


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

By: Richard A. Posner

Author Bio: Richard A. Posner graduated from Yale majoring in English and from Harvard as valedictorian of his class. He has written over 40 books on law and several topics outside of the law spectrum such as The Economics of Justice and Sex and Reason.

Clinton Against America

By: Kate Lee

As Richard Posner once stated regarding the truth, “fact is often stronger than fiction because most writers of fiction try to make their story plausible.”1 This statement remained prevalent as Posner analyzed the Clinton Presidency scandal. January 2, 1998, marked the beginning of a new era occupied with with media, scandal, and lawsuits. America had caught wind that Kenneth Starr, the Independent Counsel—similar to a prosecutor—was in the process of investigating charges against President Bill Clinton. Among them were perjury—lying to the court after a swearing of the truth—and other instances of obstruction of justice. These crimes were committed to conceal the most chaotic part of the Clinton administration: the Monica Lewinsky affair, dubbed by Posner as the “most riveting chapter of recent American history.”2 Posner delves into the crisis of the century in his book—An Affair of State: The Investigation, Impeachment, and Trial of President Clinton—to explain his opinions and knowledge of the time.

Posner begins his book by introducing Lewinsky and how she managed to weave her way into the framework of the Oval Office. Lewinsky started off as an unpaid White House intern July of 1995. She had caught Clinton’s eye and they flirted from afar until November 1995 when the interns were all moved to where the Oval Office was. One deceitful evening Lewinsky and Clinton began their affair. Eventually, Lewinsky was moved to a job in the Defense Department to keep Clinton away from trouble with young women. However, this devastated Lewinsky who claimed she “had fallen in love with the President (‘he was sunshine,’ she explained to the grand jury).”3 The removal was due to Clinton getting sued 1994 by Paula Jones for sexual harassment when Clinton was Governor of Arkansas. Clinton was set to run for re-election in 1996, the same time as the pending suit. Thus, it was important for Clinton to stay out of sexual affairs.

On December 19, 1997, Jones’s lawyers summoned Lewinsky to appear for a deposition in January. Lewinsky was required to bring any gifts Clinton gave her. Scared, she tried to enlist the help of Vernon Jordan. Lewinsky gave all the presents she had received from Clinton to Betty Currie for safe keeping. Lewinsky revealed to Linda Tripp her relationship with Clinton. She attempted to convince Tripp to commit perjury with her. However, Tripp did the opposite and decided to start tape recording her conversations with Lewinsky over the phone. When Tripp appeared before the grand jury she testified that her reasoning to taping phone conversations with Lewinsky was protection in the Jones Case. It was a form of self-defense for Tripp to record the conversations and she “desired the relationship to become known.”4 In January 1998 Tripp managed to reach the Independent Counsel’s office and relayed everything she knew about the affair and gave them all her tapes. Lewinsky was in deep trouble because she had signed a false affidavit which meant she committed perjury and tried to convince Tripp to do the same. On January 21, 1998, America learned the shocking truth about the Tripp tapes and the investigation of the Independent Counsel. Clinton testified before the grand jury over closed-circuit television from the White House, and denied the following: lying when he testified at the deposition that he had not been “alone” with Lewinsky, helping her with job-hunting to prevent her from telling the truth in the Jones case, suggesting to Currie to take the gifts from Lewinsky, and lying. Posner points out that “the only crime plausibly attributable to the President growing out of his affair with Lewinsky is obstruction of justice.”5 Obstruction of justice is an overarching term for a plethora of crimes involving corruption or interfering improperly with legal justice and it includes perjury in a criminal or civil case. Clinton’s obstruction of justice has two points: falsely influencing witnesses and committing perjury in the Jones Case during his deposition, his grand jury testimony, and to the House Judiciary Committee. Eventually, the truth of the event came out and Clinton was under fire. The testimony of Currie, Jordan, and Lewinsky was vital to determine whether Clinton had obstructed justice. The House of Representatives did not base impeachment on the lies Clinton told. Posner advocated that legal justice—justice by judges and other authorized officials—must not be allowed to degenerate into popular justice—ideas of justice that are held by the average person untrained in law. The House failed to adopt comprehensive routine rules for Presidential impeachment before beginning its impeachment inquiry even with eight months to prepare.

The focus shifts to “the history, scope, and form of impeachment” as Posner relates an in-depth approach to impeachment.6 He summarizes how the Constitution allows federal officials and the President to be removed from office, and can be obstructed from holding future federal offices when impeached by the majority vote of the House and conviction by two-thirds vote of the Senate. However, Posner highlights the procedural and substantive roadblocks when trying to remove the President with impeachment. Procedural involves the fact that there must be a two-thirds vote in the Senate, while substantive is limiting grounds of removal to high crimes and misdemeanors. Concerns with political impeachment is that it would undermine judicial independence. Posner points out that political impeachment is also frowned upon because if one is associated with a certain party, it is evident they will do anything to keep their party in power. For example, if Bush had done the same deed, the Republicans would draw back for “darkly political” reasons.7 The growth of revelation, investigation, and prosecution allowed for a climate that favored political impeachment. Posner states that, “the closest analogy to the trial of a President before Senate may be the trial of the Nazi leaders before the Nuremburg Trials.”8 The trial’s most serious problem was the failure to impose a gag rule. A President could be removed from office if enough executive branch members resigned in protest, but this method is highly unconstitutional and the only thing that made sense was impeachment. Clinton breached private morality by involving others in his lie, resorting to slander and condoning the slander of Lewinsky and Starr’s name. Many of Clinton’s answers during the trial were very abstract, mostly “I don’t know,” and he fatally diminished his reputation and his place in history.

Posner then questions whether Clinton should have been impeached, and if impeached, should he have been convicted. The biggest concern that pro-Clinton people held was that if Clinton was impeached, the Presidency would become very weak. He mentions that the positive side of the whole conspiracy is that Clinton’s acquittal has reduced the likelihood of any future impeachment of a President because of misconduct. It also managed to undo the Democrat Party’s attempt to remove the President’s “wings” of power and instead, Democrats adopted an attitude against the independent counsel law (which weakened the power of the President) and now supported unilateral Presidential military action. However, the problem Posner states is that Clinton’s case raises the issue of deciding whether to choose a pragmatic approach to government or a rigorist approach. Pragmatic approach would consider the consequences that could arise and a rigorist would allow Clinton to finish his term unless deemed unfit. Impeaching and convicting Clinton for his actions would have demonstrated an impressive commitment to the case. However, Clinton was popular among the public and impeachment seemed a little extreme for his affair because when compared to Nixon and Watergate, it was less serious. Posner states that “these ‘wrongs’ to which he confessed may not have been violations, at least serious violations.”9 This is because privacy is both a duty and a right, something Clinton was entitled to until his life was flaunted to the public and became a public issue. Clinton’s main defense in the beginning was that the scandal and investigation by the Independent Counsel were solely about sex, but he was wrong. Posner states that his affair was viewed as a sign of moral degeneracy that many conservatives believed was slowly eating up America.

Lastly, Posner leaves the reader with lessons for the future. He tells of the three professional thinking practices that have been failures. First, is narrow “legalistic” reasoning that the 1999 Supreme Court employs as seen in the Clinton v. Jones case. Second is thinking that the crisis has shown up in moral, political, and legal theory as deployed by “public intellectuals.” Third is legal thinking at the practice as distinct from the academic level. Ronald Dworkin, author of A Kind of Coup which addresses impeachment, believes that the impeachment of Clinton shows that “a partisan group in the House, on a party-line vote can annihilate the separation of powers”10 and resembled a “kind of coup.”11 The biggest mistake made by the media was describing Lewinsky as a twenty-one year old intern because it created the impression Clinton took advantage of a girl. What Posner wanted the reader to understand is that they must think more systematically about the dynamics of conflict. People must be careful in their evaluations to tell the difference between foresight and hindsight; between tactics that may have seemed reasonable but turned out disastrous and tactics that seemed unsound should have been recognized. Readers must take away that the powerful can be cowards, professionalism cannot always help cope with challenges, and too much law could be a bad thing.12

Throughout the book, Posner develops an attitude toward the impeachment that remains quite neutral, however he hints that it affected America in many negative ways but there was hope for the future. He states: “there is still to be considered the argument that impeachment was a disproportionate response to President Clinton’s misconduct…the punishment should fit the crime.”13 By stating this, Posner establishes both a neutral tone and his credibility because he has presented both sides of the Clinton impeachment by providing anti-Clinton ideals and pro-Clinton ideals. Posner points out that the affair impacted America negatively because it described in exact detail of Clinton’s sexual life which brought upon enormous embarrassment for the role of the President. It allowed for the establishment of the analogy, “the President of the United States…is to a certain extent a cork floating on the ocean rather than the moon controlling the tides.”14 This analogy conveys the idea that the President has no real control over the actions he makes and is controlled by the public mind. The “mystique” of the presidency was especially damaged, possibly destroyed, along with that of the other branches of federal government. But hope for the future is evident when Posner comments that “Americans have reached a level of political sophistication at which they can take in stride the knowledge that the nation’s political and intellectual leaders are their peers, and not their paragons.”15 This means that America does not need to look to leaders as the perfect example of people they must become, but just normal people whom they can learn and interact freely with.

Richard Posner is a judge of the Unites States Court of Appeals for the Seventh Circuit as wells as a lecturer at the Chicago School of Law. He majored in English, which would mean he would excel in writing an influential piece of literature. His position as part of the law system provides evidence that Posner would write the book in an unbiased manner because it is expected of judges to uphold a neutral position on matters. Posner worked as Attorney Advisor to the Federal Trade Commissioner but later advised it to be abolished. This gives Posner credibility as a judge because even though employed, he followed the facts and advised something that would put him out of a job.16 Posner was recommended by Ronald Reagan to become a judge of the United States Court; this could influence Posner to take a Republican stance on some of his arguments about Clinton. The book was published in 1999, during the period of the scandal. The impeachment of Clinton had taken place on December 19, 1998. Chaos was guaranteed to have swelled greatly during that time. The flabbergasted reactions of the public to the crimes Clinton had committed reflected the statistics that 67% said he should not be charged, while 30% said he should be.17 The impeachment of another President would have also alerted the public because it had happened twice before with Nixon—although not impeached because he resigned—and Andrew Johnson. This would place stress on the public because they would wonder whether America’s system was corrupt and how the nation would prosper. Thus, Posner was likely inspired to write this book to clear up the facts about the impeachment and leave the public with a sense of closure on the matter. He would also use this opportunity to reassure America that it would not falter because of this incident and says, “the nation does not depend on the superior virtue of one man” which would allow the citizens to develop a more independent attitude.18

In reviews of the book Posner is celebrated for his relaying of the events of the period. He is celebrated by the fact that he “has a rigorous, unsparing, razor-sharp analysis” which would attribute to the idea presented earlier that Posner is extremely neutral on the matter.19 Posner is also highlighted by the fact that his “distinguished jurist’s opinion” can be read by the public about the matter. Reviewers have a very positive attitude towards the book possibly because of Posner’s role as a juror, thus they would expect a clear stance from Posner.20

The book was an excellent read that provided much in depth detail about the affair. Posner states, “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.”21 By saying this, Posner points out how he will not be relaying the drama of the century, but the facts. He provided stances on both sides of the issue and allowed the reader to decide for themselves what their opinion should be. In his question, “should President Clinton have been impeached?” Posner does not provide a stock answer to this. Instead, he allows the reader to review the information about the case and decide for themselves. Posner’s accurate relaying of events without a biased tone leaves the reader with an enjoyable book that allows them to develop their own stance on the events fed to them

The book addresses the impact of technology since the 1990’s because of the multitude of ways technology was used during the affair. When Tripp recorded Lewinsky’s conversations she utilized a tape recorder, which shows the advancement of technology to the extent of recording. This provides a distinguishing change from the modern era and the past, because evidence to the Court may be presented from a concrete source, rather than having unreliable witnesses like in the Salem Witch Trial. It allowed the Court to remain honest without any falsifying of the truth. The fact that Clinton’s trial was publicly televised provides the fact that technology has advanced enough for it to be readily available to the public. Due to this the public was able to have information about the trial almost immediately. “The public life of the nation in 1998 and the first six weeks of 1999 was dominated by President Clinton’s struggle to retain office,” states Posner and this shows the impact of technology because the whole world could find out about the affair because technology has allowed information to travel quickly.22

Posner wrote an eloquent rendition of what he believed happened in the Clinton impeachment era. He provided unbiased facts that allowed readers to thoroughly understand the trauma of the time period. Through his information, readers are able to ascertain information about the case while understanding the regulations of law through a professional perspective.

[1] “Richard A. Posner Quotes.” Richard A. Posner Quotes (Author of A Failure of Capitalism). N.p., n.d. Web. 27 May 2017.
[2] Posner, Richard. An Affair of State. Cambridge: Harvard University Press, 1999. 1.
[3] Posner, Richard. 18.
[4] Posner, Richard. 24.
[5] “Linda Tripp.” Wikipedia. Wikimedia Foundation, 18 Apr. 2017. Web. 24 May 2017
[6] Posner, Richard. 36.
[7] Posner, Richard. 95.
[8] Posner, Richard. 111.
[9] Posner, Richard. 119.
[10] Posner, Richard. 136.
[11] Posner, Richard. 237.
[12] Posner, Richard. 237.
[13] Posner, Richard. 265.
[14] Posner, Richard. 187.
[15] Posner, Richard. 264.
[16] Posner, Richard. 266.
[17] Parloff, Roger (January 10, 2000). “The Negotiator: No one doubts that Richard Posner is a brilliant judge and . . . .” Fortune Magazine. Retrieved October 17, 2008.
[18] Posner, Richard. 266.
[19] Troy, Gil. “Troy on Posner, ‘An Affair of State: The Investigation, Impeachment, and Trial of President Clinton’.” Troy on Posner, ‘An Affair of State: The Investigation, Impeachment, and Trial of President Clinton’ | H-Pol | H-Net. N.p., n.d. Web. 27 May 2017.
[20] “An Affair of State.” An Affair of State — Richard A. Posner | Harvard University Press. Joseph R. Perlak, n.d. Web. 23 May 2017.
[21] “An Affair of State.” An Affair of State — Richard A. Posner | Harvard University Press. Jonathan Raugh, n.d. Web. 23 May 2017.
[22] Posner, Richard. 262.