Richard Posner on impeachment: wedge of history


"An Affair of State: The Investigation, Impeachment and Trial of President Clinton," by Richard A. Posner. Harvard University Press. 276 pages. $24.95.

There is, alas, no such thing as instant hindsight. Despite our best efforts to accelerate the reflective process, the writing of history -- even the roughest drafts of it -- still takes time.

So I was alarmed to discover that "An Affair of State" -- a book that promises sober analysis of the legal, moral, social, cultural and political implications of the impeachment -- was completed only four days after the trial of the president ended in the Senate.

The author, chief judge of the U.S. Court of Appeals for the Seventh Circuit, is one of the country's most prolific and prestigious legal commentators. No one is more qualified to guide readers through that territory where the law intersects with politics, collides with morality and shapes our society, our culture and our thin wedge of history.

Sadly, however, this rush draft of impeachment history proves only intermittently insightful. From an analyst of such unique, creative and powerful intelligence, I had hoped for more.

The judge defends his haste on the grounds that what is lost in perspective is gained in "freshness and immediacy." But for freshness and immediacy, we have television. We look to Judge Posner for ripe analysis, measured judgment -- and for a sense of where the whole baffling ordeal fits into the big picture of constitutional and political history.

Certainly, Judge Posner paints on the biggest of canvases: he reflects not only on questions of law, but also on the interplay of public and private morality, on philosophies of governance, on contemporary political realignments and the state of mind of the electorate -- even on parallels between politics and war, and tactical lessons to be learned from mortal combat.

But these perorations, though often marked by wit or touched with insight, seem oddly aimless. They left me grasping for something to take away from this book, apart from its more obvious conclusions: that Judge Posner believes (as do most Americans) that the president committed perjury; more controversially, that he believes perjury is itself an obstruction of justice punishable by law; and that he faults the Supreme Court for failing to prevent the whole mess in the first place, by allowing the Paula Jones sexual harassment case to proceed while President Clinton was still in office.

But that still leaves me wondering at the answer to the largest question posed by the book (and the title of one chapter): "Should President Clinton Have Been Impeached, and If Impeached Convicted?" Did he commit "high crimes and misdemeanors"? Should he have been removed from office?

"Maybe it's too soon to tell," writes Judge Posner -- partly because only time will tell how much harm was done, either by the presidential transgressions or by the trial itself. And for this judge, who has made pragmatism his by-word, acts must largely be judged by their consequences.

But in that case, this book was written too soon -- or published too late. Either way, it is a missed opportunity and a shame for those who struggle to comprehend one of the most extraordinary political events of the end of century.

Patti Waldmeir writes about legal matters for the Financial Times, and was formerly the newspaper's U.S. editor. Her book "Anatomy of a Miracle: the Death of Apartheid and the Birth of a New South Africa" was published in 1997.

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