AN AFFAIR OF STATE: The Investigation, Impeachment, and Trial of President Clinton

#### AN AFFAIR OF STATE: The Investigation, Impeachment, and Trial of President Clinton. By Richard A. Posner. Harvard Univ. Press. 276 pp. $24.95

Someday a great legal thinker will write a wonderful book on the investigation and impeachment of President Bill Clinton. Posner, the prolific and generally brilliant chief judge of the U.S. Court of Appeals for the Seventh Circuit, seems in many ways the ideal author. He is rigorous factually and legally, and he has a concern for the interaction of morality and law that is critical to any meaningful examination of the subject.

Unfortunately, Posner’s book comes too early to transcend the discussions that took place as events were unfolding, and too late to add to those discussions. It was written as the scandal was playing out, and much of it feels like an elegant rehash of arguments debated in real time on MSNBC: what constitutes an impeachable offense, the viability of lame-duck impeachments, the constitutionality of censure. Posner generally defends Kenneth Starr, and he spends considerable time emphasizing the seriousness of Clinton’s offenses and the strength of the evidence against him. He evinces amused contempt toward the congressional proceedings, and less-amused contempt toward the president’s defenders.

The author does present several useful and often witty insights. A provocative section examines the battle over Clinton as a species of war. In addition, Posner’s portrayal of the Kulturkampf dimensions of the saga is keenly compelling. And he is at his best when attacking the public intellectuals and legal experts who served as ever-present and almost-ever-banal commentators. Posner criticizes them for both "reticence and stridency": they generally failed to take on the scandal’s fundamental ethical questions, in his view, and the commentary we did get was shabby, predictable, and often dishonest. He observes that "it is tempting to conclude . . . that the left intelligentsia lacks a moral core, while the right intelligentsia has a morbidly exaggerated fear of moral laxity."

But readers looking for big-picture answers will be disappointed. Posner ultimately hedges on whether President Clinton’s conduct merited impeachment. His qualified defense of the independent counsel, though persuasive as far as it goes, doesn’t take on the more sophisticated criticisms, those that focus not on specific ethical allegations but on Starr’s pattern of sublimating all other social and governmental interests to the immediate, though often marginal, needs of his probe. Posner’s distaste for the independent counsel law (which Congress has allowed to lapse) and his disapproval of the Supreme Court’s decision allowing the Paula Jones case to proceed are conventional wisdom. An Affair of State lacks the altitude needed for a major work on this familiar subject.

—Benjamin Wittes