Richard Posner is the wonder of the legal world. He is Chief Judge of the Seventh Circuit Court of Appeals—Ronald Reagan appointed him to that court in 1981—and he is therefore one of the busiest and most important federal judges of the nation. He is an authority on antitrust law, and was recently appointed an arbitrator in the huge Microsoft antitrust suit. He was a professor at the University of Chicago Law School for many years before he became a judge, and he continues to teach there as a senior lecturer. He has produced books on a variety of legal subjects in numbers that would be amazing even if he had no other responsibilities.1 To judge from the copious footnotes in all his books, he is a voracious speed-reader as well.
Posner gained his academic reputation—and his appeal to conservative politicians—by popularizing the “economic analysis” thesis that has had surprising influence in American law schools for decades: that law should be designed to ensure that assets and opportunities are in the hands of those who can and would pay most to have them. He has argued, for example, that mothers should be permitted to auction off their newborn babies,2 and that criminal laws prohibiting rape are justified because “even if the rapist cannot find a consensual substitute… it does not follow that he values the rape more than the victim disvalues it.”3 In recent years he has qualified his enthusiasm for wealth maximization, however4 : though his arguments on almost every subject are still dominated by economic speculation, he now believes that law is to be tested not against the single goal of increasing collective wealth but against the much more general goal of “pragmatism.” He means that law should aim at achieving the best consequences overall, taking into account not only the community’s overall wealth but other desirable consequences as well.
His two most recent books, both published last year, are very different, and in some ways contradictory. The Problematics of Moral and Legal Theory is an academic work based on various lectures given in recent years. It endorses moral relativism, declares that if someone sincerely claimed that it is right to kill infants, “I would hesitate to call him immoral,” advises that we should not call slavery, Nazism, and Stalinism immoral (“that is just an epithet”) but rather “not adaptive,” and insists that moralizing is useless except as a rhetorical tool for charlatans and charismatic leaders.5 An Affair of State is an account of President Clinton’s affair with Monica Lewinsky and his impeachment and trial; it is, on the contrary, drenched in moral indignation and chastises academics and intellectuals who opposed impeachment for not denouncing Clinton’s moral flaws often or ferociously enough. Nevertheless Posner regards the two books as pursuing the same central theme: he invites his readers to treat the impeachment book as “an empirical test” of the academic one’s claim “for the superiority of pragmatic to formalistic, philosophical, and historical approaches to issues of law and public policy.”
His own ethics, in publishing a book about Clinton’s impeachment so soon after the event, are open to question, because judges are not meant to enter political controversies. He insists that his book is not political because “criticism of the President’s conduct, and that of other political actors in the drama, crosses party lines, indeed is nearly universal.” But he backs the position of the Republican leadership on several key issues that continue to be matters of intense and bitter partisan disagreement—the character and gravity of the President’s sins, the extent to which they constituted crimes, the moral and legal propriety of various actions of Kenneth Starr and his staff, and the moral defects of the officials and private citizens who defended Clinton, for example. The votes on impeachment in the House of Representatives were almost strict party-line votes, and many commentators believe that the impeachment will be a key political issue in many House and Senate races later this year.
It is true that almost everyone has strongly criticized Clinton’s conduct, including Clinton himself, but Posner’s attack on the President goes well beyond anything that could be regarded as neutral scholarship or a matter of bipartisan consensus. Here is a sample passage, which illustrates the book’s tone as well as its political character:
[Clinton] committed repeated and varied felonious obstructions of justice over a period of almost a year, which he garnished with gaudy public and private lies, vicious slanders, tactical blunders, gross errors of judgment, hypocritical displays of contrition, affronts to conventional morality and parental authority, and desecration of revered national symbols.6 And all this occurred against a background of persistent and troubling questions concerning the ethical tone of the Clinton Administration and Clinton’s personal and political ethics.
In fact Posner’s attack on Clinton is extreme even by partisan political standards. He flirts with the appalling accusation, which even the Republican zealots shied away from, that the President bombed Iraq in December 1998 to divert attention from his impeachment problems: he says that it is “impossible to determine” whether the charge is true, ignoring the compelling evidence that it is not true. 7 Nor does he limit his political opinions to the impeachment story: he has much to say, all of it ungenerous, about “liberals”—including, for example, the silly statement that “liberals rather like treating adults as children; that is what paternalism means, and liberal policies tend to be paternalistic”—and he calls Clinton’s 1993 health care plan, as well as various proposals in his 1999 State of the Union Address, “socialistic.” It is injudicious (to put it mildly) for a judge to make such a public parade of his own politics.
An Affair of State is ethically questionable in yet another respect, moreover: it pronounces Clinton guilty of various felonies for which he might still be prosecuted. The possibility of a criminal prosecution after the end of Clinton’s term—or, indeed, while he is still president—has been widely discussed by prominent politicians and by the Office of Independent Counsel itself, both throughout the impeachment proceedings and after the Senate acquittal.8 Posner acknowledges that “the ethical rules of the federal judiciary forbid public comment on pending cases,” but, he says, “I do not discuss any pending cases.” He has misstated the rule: Canon 3(A)6 of the Code of Conduct for United States Judges prohibits federal judges from commenting publicly on “pending or impending” cases, and though it is unclear what “impending” means, it should be understood, given the rule’s evident purpose, to include not only imminent and certain prosecutions, but any possible future prosecution that has been publicly debated among politicians and officials and often mentioned in the press, particularly when the judge is prominent and his statements are likely to receive wide circulation.9
The reception of Posner’s book underscores the danger. It was lavishly praised in the influential New York Times Book Review under the title “A View From the Bench,” with a subtitle that read “A Federal Appeals Court Judge Analyzes the Impeachment of President Clinton and the Indiscretions that Led to It,” by a journalist who apparently felt entitled to take a distinguished judge’s legal claims at face value.10 The Times Book Review named it one of the ten best books of the year. It would be hard to imagine greater publicity for a judge’s opinions about a widely discussed possible criminal trial.
Of course the ethical question is one for Posner himself to decide: he declares himself “unapologetic,” and we must respect his decision. But he should have bent over backward to make plain when his own judgments about the law were stretched, controversial, or speculative. Instead he is dogmatic when he should be guarded, and many of his most confident and important judgments are highly doubtful or plain wrong. Given the prestige of Posner’s office, it is worth describing some of his mistakes in detail.
He declares, for example, with no trace of qualification, that “it is clear that Clinton perjured himself [in denying a sexual relationship with Lewinsky and saying that they were never alone] in the Paula Jones deposition….” But no one is guilty of perjury unless his false testimony, judged as of the time it was made, was “material” to the proceedings in which it was made—that is, unless a truthful statement could properly have influenced the outcome of those proceedings. Posner himself explains the point of this materiality requirement: “In many legal settings,” he says, “including both depositions and grand jury investigations, the rules of relevance are extremely lax, which enables the questioner to inquire about activities that are at once intensely private and entirely marginal to the purpose of the inquiry”; in these circumstances, he says, the materiality condition grants an “informal ‘privilege’ to lie under oath about immaterial matters in order to protect one’s personal privacy.” Were Clinton’s lies about Lewinsky material, as Posner claims? Or were they only an exercise of this “privilege” to lie in order to avoid the “intensely personal” disclosures that the right-wing lawyers who took over Jones’s case hoped to elicit, in order to embarrass Clinton politically, but that were “entirely marginal” to the case?11
The fact that Judge Wright required Clinton to answer questions about Lewinsky does not mean that they were material: as Posner says, judges are often lax about the questions they allow in depositions. When Wright later ruled evidence about Lewinsky inadmissible, because it “would frustrate the timely resolution of this case and would undoubtedly cause undue expense and delay,” she did say that such evidence “might” be relevant, but she insisted that it was certainly not “essential” to the “core issues” of the case. In April 1999, after Clinton had been acquitted by the Senate, she fined him for contempt of court because he had lied in answering questions—for example, whether he and Lewinsky had been alone—that she had directed him to answer. But her decision did not suppose or imply that his lies were material to the case: she declared him lacking in proper respect for the “integrity of the court’s proceedings,” not guilty of perjury.12
If you were a juror asked to decide whether Clinton had sexually harassed Jones when he was governor of Arkansas, would it help you to know that, five years later, as president of the United States, he had an affair welcomed and provoked by Lewinsky? The pertinent rules of evidence would allow the later affair to be introduced in the Jones case only for one purpose: to show that Clinton tends to create a workplace environment in which subordinates are rewarded for sexual favors and punished for declining them.13 But nothing in the truth about Lewinsky even marginally supports that suggestion: she lost the White House job that she craved not just in spite of her affair with Clinton, but in order to keep her away from him, and whatever Clinton’s motives were in trying to find her a nongovernmental job, these motives did not include a reward for sex.
Posner’s own argument for the materiality of Clinton’s deposition lies is very weak. If Clinton had not lied, Posner says, he would have been embarrassed into settling or defaulting the Jones case for political reasons. But that misses the point of materiality, which depends on whether the truth would have helped the jury to decide the case, not whether it would have helped the lawyers make money by forcing a settlement. If a deponent’s statement about an extramarital affair is not material in virtue of its bearing on the merits of the case, it does not become material just because he would rather have settled the case than risked his marriage by telling the truth.14
In any case, the pertinent question is not whether Clinton’s false statements “might” have been material, as Wright said, but whether they were material beyond a reasonable doubt. In 1995, the Supreme Court settled a longstanding legal dispute by holding that in a prosecution for perjury the question of materiality is for the jury to decide, and that the jury must apply the usual “beyond a reasonable doubt” standard of the criminal law.15 Posner himself concedes that the Lewinsky affair was “only just” material to the Jones case. He does not explain how the affair could be “only just” material and also material beyond a reasonable doubt.
So Posner’s claim that Clinton was “clearly” guilty of perjury in the Lewinsky deposition is unjustified. Posner also declares Clinton guilty of the crime of suborning perjury by suggesting to Lewinsky that she lie in her affidavit in the Jones case. But if Clinton’s own statements in his deposition were not material beyond a reasonable doubt, then neither were her statements in her affidavit, and one cannot suborn perjury by persuading others to make false statements that are not perjurious.16 Posner says that Clinton’s advice to Lewinsky, that she should file an affidavit rather than be deposed, was “almost certainly intended to facilitate Lewinsky’s giving false testimony.” But Posner concedes that “on its face” Clinton’s advice only “concerned the form rather than the content of her testimony,” and though in Posner’s view it was “implicit” that she should lie, Lewinsky testified to the contrary. All that hardly constitutes proof beyond a reasonable doubt that he induced her to lie. (Indeed, it is not clear that Clinton would have been guilty of a crime even if Lewinsky’s testimony was material and he had explicitly asked her to lie: the federal courts are split on the question whether simply asking someone to lie, even about a material matter, constitutes an obstruction of justice.17 ) Posner also announces that Clinton was guilty of tampering with a witness if, “as is almost certainly the case,” he asked Betty Currie to recover presents he had given Lewinsky. But Currie denied that Clinton had made that request—she said that Lewinsky asked her to collect them. In fact Clinton had given Lewinsky more presents on the morning of the day in which Currie collected all his presents from Lewinsky in the afternoon. It seems odd to suppose that he would have added to the evidence if he was so anxious to dispose of it, and that fact alone is enough to rebut Posner’s “almost certainly the case” claim.
He next declares Clinton guilty of perjury in denying that he had an erotic encounter with Kathleen Willey in his private office. Willey had claimed such an encounter, but the issue would have been material only if, as Willey claimed, Clinton had pressed an unwelcome advance on her. But though Willey said that Linda Tripp would back her up, Tripp in fact said that Willey had set out to ensnare Clinton. Willey stated that she had told her friend Julie Hiatt Steele about Clinton’s boorish behavior, but Steele, after initially corroborating that claim, later said that Willey had asked her to lie, and when Starr prosecuted Steele for obstructing his investigation by making that claim the jury deadlocked and Starr decided not to retry her. Willey was willing to testify in the Steele prosecution only if granted an immunity from any prosecution herself, and then conceded having herself told a variety of lies. In the end, Starr declined to include any charge about Willey in his impeachment referral. How can Posner declare Clinton guilty of perjury beyond a reasonable doubt on the basis of such a record?
The case is somewhat stronger that Clinton committed perjury in his televised grand jury testimony when he insisted, contrary to Lewinsky’s testimony, that he had not touched her breasts and genitals. The standard of materiality for a false statement before a grand jury is easier to meet than the standard for materiality in a civil action: a lie is material in the former context if the truth might have influenced the grand jury’s decision whether to indict someone for a crime. But the only evidence Posner offers that Clinton’s grand jury statement was false is Lewinsky’s contrary description of their sexual activities, and Posner himself reports that Lewinsky lied to her friends on several occasions about the details of these activities and about other aspects of her sexual and personal relationship with Clinton. Posner chooses to believe Lewinsky in this instance, and he may be right to do so, but once again his claim of proof beyond a reasonable doubt that Clinton lied seems strained.
Even if Clinton did commit perjury in his single appearance before the grand jury, Posner’s lurid claim that Clinton “committed repeated and varied felonious obstructions of justice over a period of almost a year” would remain hyperbolic. It is conceivable that a judge in a criminal prosecution would have allowed one or more of these other accusations of felony to go to a jury; it is even conceivable that some jury would have thought Clinton guilty of one or more of them beyond a reasonable doubt. But it is not a defensible claim that Clinton was clearly guilty of all of them.
Posner’s partisanship is even more evident in his assessment of Kenneth Starr and his lieutenants. Starr knew what was on Tripp’s tapes before Lewinsky’s allegedly perjurious affidavit was filed, and, by approaching her directly rather than through her lawyer, as Justice Department rules require, he prevented her from withdrawing the affidavit in time. Starr knew of the tapes at least five days before Clinton gave his own deposition in the Jones case, moreover, and could easily have ensured that the President also knew in time not to lie. Professor Robert Gordon of the Yale Law School argues that a responsible independent counsel would have acted to prevent the President from jeopardizing himself and his office.18 Posner insists that Starr’s conduct did not amount to a legal entrapment, which is true, but irrelevant, because the question is not whether Starr failed in some legal duty to Clinton but whether Starr was willing to allow great damage to the republic in order finally to nail Clinton and so redeem his own reputation after spending millions in the Whitewater investigation with no results.
Starr made much, in his report to the House, of the danger to the country’s morals that flow from a presidential lie, and Posner repeats the warning in his “pragmatic” account of why Clinton’s lies were actually a breach of a public responsibility of probity. But a conscientious independent counsel anxious to protect the nation would have thought his first duty lay in preventing that lie if possible. Posner concedes that Starr’s failure to warn Clinton (not to mention Starr’s attempt to coerce Lewinsky into secretly taping conversations with Clinton) amounted to a “sting operation” against the President of the United States, an operation that might serve Starr’s personal or political aims but was certain to harm the country. This was a moral crime at least on a par with any of Clinton’s wrongs, but though Posner repeatedly calls Clinton’s conduct “reprehensible” and “repulsive,” he allows himself only the tepid complaints against Starr that some of his behavior was “questionable as a matter of sound law enforcement,” and that he put too much sex into his report.
Posner’s Affair has many virtues. It is clear, brisk, often amusing, and decorated with an impressive array of quotations and historical excursions, many of which are illuminating. It is also a tour de force: Posner read not only the long Starr Report, but five volumes—eight thousand pages, some of them in print so small that he had to use a magnifying glass—of supplementary material, as well as the arguments of the House Managers and the rebuttals of the President’s lawyers, and a vast amount of newspaper and magazine comment on the whole affair. He read and organized all this material at record speed—he sent his book to the publisher four days after the final Senate vote—no doubt without neglecting his many other duties.
But why was this Stakhanovite industry necessary? Why did he rush into print, in spite of the ethical constraints of his office, with a one-sided, journalistic account likely to contain serious mistakes, when waiting a decent period not only would have mitigated the ethical difficulties but would have provided more historical distance and insight? His book does not (as we shall see) contribute to the pressing constitutional debate over the circumstances that justify impeachment. Nor is he what he calls a “Clinton hater” anxious for revenge: in fact he believes that the Clinton presidency has been a success because it solidified the Reagan “revolution” that he admires.
The answer that Posner himself gives to my question is much more disturbing. He says that one of his main purposes in writing so soon was to expose “the incapacity of the academic community, including some of its brightest lights in law, history, moral philosophy and political theory, to contribute helpfully to a governmental crisis.” Indeed, he lists, among the most important lessons to be learned from the whole impeachment story, his supposed discovery that
powerful, intelligent, articulate, well-educated, and successful people who would like us to submit to their leadership…preen and strut until some unexpected event strips away their masks, demolishes their carefully construct-ed, imperturbable-seeming public selves, and exposes them in their full ordinariness and inadequacy.
This is triumphal anti-intellectualism: no doubt it delights Posner’s conservative claque, but it is unworthy of a United States judge. (In what way have the professors he dislikes asked the nation “to submit to their leadership”? In what way do they “preen and strut,” other than by writing books and articles, as he does?) In October 1998, several hundred American law professors—as Posner points out, a substantial fraction of the entire legal academy—signed a public letter asking Congress not to impeach Clinton. They said that impeachment of a president is justified only when he has committed offenses against the nation or heinous private crimes. Posner is not troubled by this amazing unity of opinion among professors of law of very different political and ideological convictions; on the contrary he uses it as more artillery in his war against academics. He says that few of those who signed are experts in the law of perjury (the letter expressed no opinion about perjury) or in constitutional law (any lawyer can evaluate the argument that “high crimes and misdemeanors” do not include lying even under oath on a private sexual matter) and concludes that the academic who signs group letters might be regarded as “the animal that likes to see its name in print.” (That seems a particularly dangerous charge for Posner, of all people, to make, particularly in this book.) In any case, his only evidence for what he grandly calls “theory’s debacle” is a list of the mistakes that he believes intellectuals made in their writings about the impeachment. Even if these mistakes were genuine they would hardly justify his broad claims about the general incapacity of the academic community to be helpful in politics. In fact, in almost every case he cites, the mistakes are his.19
I have so far not mentioned Posner’s discussion of the only really important aspect of the impeachment story: the constitutional issue. It will not matter much to history that the semen on the dress was Clinton’s, or whether he committed perjury, or even whether Starr is sexually obsessed. It will matter far more what lesson the nation has learned about how the fearsome impeachment power should be exercised. The Constitution allows Congress to depose a president, with no check from any other branch of government, whenever a majority of the House and two thirds of the Senate deem it appropriate to do so, and it is therefore crucial that the nation develop some understanding and tradition about when that process is appropriate. Posner devotes a chapter to the question, but we cannot understand his argument without first considering the other of his two recent books that I mentioned earlier—The Problematics of Moral and Legal Theory—because he believes, as I said, that his discussion of impeachment in Affair of State is an “empirical test” of claims that several of his recent books, including Problematics, make about “the superiority of pragmatism.”
Problematics defends two main claims: the “strong” claim that moral philosophy is of no use at all to anyone and the “weak” claim that, in particular, it has no part at all to play in legal argument. 20 Posner’s arguments for the first of these ambitious claims are very weak. He criticizes the work of a few highly selected philosophers—he attacks Judith Jarvis Thomson’s well-known argument for abortion rights by repeating objections that are already familiar in the literature,21 for example, and calls attention to the “lugubrious” character of the imaginary people in John Rawls’s famous “original position” story to show that Rawls has a mistaken view of human nature. (Rawls and others have written volumes trying to guard against that crude confusion: the imaginary inhabitants of the original position are not meant to be like us.) Then Posner declares, as a matter of a priori psychological dogma, that moral arguments, no matter how sound or powerful, never convince anyone not already convinced anyway, so that unless moral philosophers are “dilettantes” who don’t care whether their work has any practical consequences, they are wasting their time. This is wrong twice: no doubt many people are never moved by the logic of a moral argument, even once in their lives, but it is absurd to suppose that no one ever is. Moral philosophers who try to state and support what they believe to be the truth about matters of enormous importance are hardly dilettantes even if they know they are unlikely to ignite mass movements.
Posner’s arguments for his second thesis, that moral philosophy can be of no use at all to lawyers and judges, are even worse. The law is built around concepts—of responsibility, intention, fault, causation, meaning, liberty, equality, fairness, justice, and democracy, for instance—that have been the object of intense philosophical study for many centuries. It is insulting to both professions to claim that judges could not profit by consulting the vast literature of that study. Posner’s only argument for that further dogma is that philosophers disagree with one another. They do indeed, and anyone who expects them to stop disagreeing misunderstands philosophy’s point. Of course judges cannot cite any philosophical text as unchallengeable, as they might, perhaps, cite an uncontroversial economic study or a piece of widely respected historical research. But that seems beside the point, since judges cannot avoid taking sides in these philosophers’ disputes and might well benefit from some familiarity with the arguments on both sides.
Do patients dying in pain, or who are severely handicapped, have a moral right to a willing doctor’s help in suicide? Do patients kept alive by life support have a moral right to have that support terminated if they wish? Would it be inconsistent to recognize one of these rights but not the other? Moral philosophers disagree, and judges must take sides when they consider the constitutionality of laws prohibiting assisted suicide and terminating life support.22 Can a creature which has never been sentient have interests of its own? Philosophers disagree, and courts must take sides when they decide whether states are entitled to claim that an early fetus has rights.
Does democracy mean only majority rule; or does it also require that the rights of minorities be protected? Philosophers disagree, and judges take sides on that issue, too, when they accept or reject the argument that they should use sparingly their power to protect minorities from the majority because that power is undemocratic. Why should judges not be helped, in making all these decisions, by some awareness of what the prominent philosophers who disagree have to say? It is a basic assumption of the Anglo-American adversarial system of legal argument, after all, that disagreement can be instructive.
Posner insists, however, that judges can avoid all philosophical issues, including those I just mentioned, because they have available to them an entirely different method of resolving legal issues, which he calls “pragmatism.” Judges should not worry about whether acts are different from omissions in some morally pertinent way, or whether a fetus has interests of its own, or what the best conception of democracy is: instead they should identify the likely consequences of allowing assisted suicide, or of making abortion a crime, or of striking down some statute as unconstitutional, and then ask whether these are better than the likely consequences of the opposite decision. The pragmatist judge, he says, “wants to come up with the decision that will be best with regard to present and future needs.”
There is, however, a patent fallacy in this advice. Lawyers and judges must appeal to (or in any case make assumptions about) moral or political principles in order to decide whether the projected consequences of one decision are better than those of another. Suppose we are confident that imposing special restrictions on lawsuits against drug manufacturers would encourage medical research and greatly improve health care over the long run. We still cannot tell whether these restrictions would produce the best consequences until we first decide whether they would be unfair to the patients who would be prevented from suing: if the restrictions would be unfair to them, then the consequences of imposing them would be much worse, just for that reason.23 The point is even clearer when legal issues involve matters of deep moral controversy. How can judges decide whether the consequences of banning abortion—fewer abortions and more unwanted children—are better than the consequences of permitting it—fewer unwanted children and more aborted fetuses—without first deciding whether abortion is murder?
Posner believes that the Supreme Court’s decision in Roe v. Wade was premature: it would have been better, he says, to allow different states to experiment with different levels of regulation or prohibition, on a “trial and error” basis, in the hope that “an answer might have emerged that would have commended itself to the Court and the nation as both principled and practical.” (He calls me “blind” for not understanding the wisdom of this trial-and-error policy.) But how could we judge which results were “principled” without deciding whether women have a moral right to control the use of their bodies in reproduction? And if we think they do, then would it not be wrong to permit an experiment whose consequences, in some states, would include violating that right? Wasn’t that, in fact, exactly the “experiment” that had been conducted for decades before Roe v. Wade?
This obvious and apparently fatal objection has been pressed on Posner repeatedly over the years, and in Problematics he finally responds to it, but in a way that seems to acknowledge its force. He concedes that “pragmatism will not tell us what is best,” but adds that it can nevertheless help judges in their search for the best results “unhampered by philosophical doubts” provided there is a “fair degree of value consensus among the judges, as I think there is.” But if pragmatism is somehow to replace all reflection on philosophical issues, then the degree of consensus must be not just “fair” but very substantial indeed, and it is wildly implausible that it is substantial enough. Judges disagree about fundamental issues of morality and value as much as other people do, and even if they did agree they would still be responsible for explaining to the larger public, which would remain divided about issues like abortion, why they have settled on the view that they have. So Posner’s lame appeal to a supposed judicial consensus about important values seems to confirm that pragmatism is, after all, useless when values clash.
It is therefore odd that he should appeal to pragmatism yet again, in An Affair of State, at the crucial moment of his discussion about when impeachment is justified. Most of the academic lawyers who discussed the constitutional issue concentrated on the Constitution’s requirement that an official may be impeached only for “high crimes and misdemeanors.” That obscure phrase requires interpretation: we must ask which understanding of it fits best with the most persuasive account of the overall structure of our constitutional arrangement. Many of the legal scholars who opposed Clinton’s impeachment argued that “high crimes and misdemeanors,” properly interpreted, include only serious public offenses, like Nixon’s constitutional crimes and those private crimes, like murder, that show such a wanton disrespect for human life as to make a president’s continuance in office a danger to the nation, or (in the opinion of some scholars) such criminal depravity as to make it intolerable to leave the perpetrator at liberty.24 Posner rejects that test because, he says, not only serious crimes, like murder, but even more minor offenses may possibly indicate a dangerous character. That is true, but not to the point, because a murderer has demonstrated the depravity that makes him dangerous, and someone who lies about sex, even under oath, has not.
Posner does not supply an alternative interpretation of the constitutional standard that would allow us to decide whether Clinton should have been impeached and if impeached convicted. We can imagine cases of presidential acts so terri-ble that they clearly count as “high crimes and misdemeanors,” he says, and also acts so trivial that they would plainly not merit impeachment under that standard. But Clinton’s acts, he says, fell in between: they were not so terrible as to make impeachment necessary or so trivial as to rule it out. In that situation, Posner insists, it is “natural to focus on the consequences of impeaching and convicting,” to compare “the likely bad consequences [of that course] with the likely bad consequences of alternate courses of action, including intermediate sanctions, such as censure.” He considers a wide variety of consequences that might have been thought to flow from impeachment and conviction, including the expense of a change of government just two years before the next election, but focuses on the question whether impeachment might be expected to weaken the presidency as an institution and, if so, whether that would be desirable or undesirable. “The pertinent question,” he insists, “is whether the impeachment of this President on these grounds was likely to impair our system of governance.”
All this is dangerous as well as bizarre. It makes good sense to say that even if Congress were satisfied that Clinton’s acts met the constitutional standard for impeachment, it should not have impeached or convicted him unless it thought the consequences of doing so would be beneficial. There is no need to impeach every president whose acts make him vulnerable to impeachment. But Posner argues that in difficult cases the test of whether a president is impeachable is whether the con-sequences of impeaching him would be desirable. That pragmatic standard would seem to license a congress-man undecided whether the constitutional standard for impeachment or conviction was met to vote for it if he thought that removing Clinton would be good for the economy or would produce a better foreign policy. True, Posner’s discussion suggests that he has a much more limited view of the kind of consequences that count: he thinks that impeachment is proper only when it is likely to produce, not a healthier economy or a wiser foreign policy, but a better constitutional structure—when it is likely to improve rather than impair “our system of governance.” Even so, his pragmatic advice is as empty in this context as in the others I discussed: people will disagree about which changes would be improvements and Congress, in order to justify the view it took, would have to appeal to principles of political morality of the kind that Posner means to avoid.
It would have to appeal, for ex-ample, to some view about the char-acter and importance of the separa-tion of powers. A “pragmatic” congressman who thinks that separation is crucial will urge a higher threshold for impeachment than one who favors a more parliamentary system, in which the executive is subordinate to the legislature. Posner’s pragmatism cannot decide which of these constitutional positions is superior—only a combination of political science and political morality can do that. So his test is not a way of avoiding issues of political philosophy, even in this context, but only a reminder that such questions cannot be avoided.
That presumably explains why what should be his climactic chapter ends so anticlimactically. After trumpeting the arrival of pragmatism, he concludes that it can render no verdict. He says only that his central question, about the consequences of impeachment for our system of government, is “unanswerable,” and that other pertinent questions about consequences “elude confident answer.” He offers no opinion about how a congressman should have voted about impeachment, and so ends by expressing no view about the only significant issue he takes up.
After all the moralizing and all the insults, then, Posner’s “view from the bench” adds little of lasting importance to public discussion of the lessons of the impeachment year. He says he wrote Affair to illustrate the thesis of Problematics: that moral theory is useless and that facts are everything. The two books, as we have seen, actually disprove that thesis. But taken together with his other recent books, they do demonstrate Posner’s often self-destructive anger at moral philosophy and philosophers.25
He seems worried that the growing importance of normative philosophy in American legal education will crowd out the economic and empirical studies of practical consequences that he thinks much more important. But there is no reason to think that a renewed interest in moral and political theory must come at the expense of anything else. No doubt some division of intellectual labor is necessary, however, and Posner may choose to concentrate his academic work on empirical issues that are better suited to his tastes. When he is not driven by his anti-intellectual furies, he is a shrewd commentator on legal and social phenomena, a useful debunker of cant on both left and right, and a prolific and entertaining spokesman for the legal culture.26 If he finds philosophy useless, he should try to do without it. But he should stop writing demeaning books hectoring others to give it up too. He can leave philosophy alone and still have legal world enough to bustle in.
The Mistakes were Posner’s, not the Scholars’
Posner criticizes me for suggesting that a party-line vote for impeachment and conviction of a president on purely political grounds would “annihilate” the separation of powers. He replies that the impeachment power is part of what defines the separation of powers and can therefore be no threat to it. That is legal positivism at its most arid. We can certainly distinguish the ideal of a government of separate powers from the Framers’ inevitably imperfect realization of that ideal in the Constitution: indeed, as I pointed out in an article that Posner criticizes, the Framers themselves worried over the impeachment clause precisely for that reason.* Posner made the same point himself earlier in his book: he said that an impeachment on only political grounds, which could not be reviewed in the courts, would push the nation toward a parliamentary system of government, in which the executive is subordinate to the legislature, and away from “the theory of the US Constitution” in which the two departments are separate.
He also criticizes me for what he calls a “revealing” error in my statement that removing a president is a seismic event because the president is the only officer elected by all the people; not so, he insists, as the vice-president is also so elected. His correction is pedantic: people cannot vote independently for the vice-presidency, and the vice-president has no power, beyond presiding over the Senate, that is not delegated by the president. He suggests that removing a president is less an affront to the people’s will because they have also elected a vice-president of the same party. But though voters knew that Gore would become president if Clinton died or became incapacitated, it hardly follows that they were indifferent to which of them was president.
Posner criticizes a group he calls “notables” who signed a New York Times advertisement suggesting censure rather than impeachment: he says they should have noted the possibility that censure would be an unconstitutional “bill of attainder.” But congressional censure is not a bill of attainder if Congress imposes no fine or other punishment beyond a statement of its opinion (Posner himself calls it an “open question”; whether this is so, see pp. 191-193 of An Affair of State) and the advertisement suggested no fine or other punishment.
He criticizes the various commentators (including me) who suggested that the procedures Starr and the House Judiciary Committee used would have meant dismissal of an ordinary criminal prosecution. Rule 6(e)2 of the Federal Rules of Criminal Procedure requires that grand jury testimony be kept secret, but the prosecutors leaked contents of that testimony to the press, published it as an annex to the Starr Report, and broadcast Clinton’s televised grand jury testimony to the world. Posner replies that the leaks did not benefit Starr, and that no law prevented the committee from publishing and broadcasting the testimony. That is true, but irrelevant: the commentators argued, not that anything Starr or the committee did invalidated the impeachment, but that the impeachment rules offered Clinton few of the protections of the ordinary criminal law.
Posner reports that the Supreme Court has held that such prosecutorial misconduct “is pretty much harmless per se”—that is, that no such conduct could ever be grounds for overturning a later conviction. But the decisions he cites as authority fall far short of supporting that surprising conclusion. They are authority, if anything, for the opposite rule: that violations of the rules governing grand jury proceedings are grounds for dismissing indictments when they affect the criminal defendant’s rights. Posner cites U.S. v. Mechanik, 475 U.S. 66 (1986), in which the Supreme Court refused to dismiss an indictment, after a long trial and a guilty verdict, even though two witnesses had testified in the preceding grand jury at the same time, in violation of Rule 6(d).
Chief Justice Rehnquist argued, for the majority, that even though the grand jury hearing was flawed, and even though the flaw might have justified a new grand jury hearing before the criminal trial began if the defendant had asked for it, the fact that the defendants were convicted at the trial showed that the grand jury was right to indict them. Rehnquist did not consider flaws in grand jury procedure, like leaking or providing reports of grand jury testimony, that might have an effect on the fairness of the later trial itself. But he made plain the limited scope of the Court’s decision: “We cannot accept the Court of Appeals’ view that a violation of Rule 6(d) requires automatic reversal of a subsequent conviction regardless of the lack of prejudice” (italics added). Justice O’Connor, moreover, in a concurring opinion, said pointedly that “the Federal Rules clearly envision that dismissal of the indictment may be an appropriate remedy for such violations of Rule 6(d).”
Posner also cites U.S. v. Williams, 504 U.S. 36 (1992). But in that case the Court held, not that the prosecutor’s error before the grand jury was harmless, but that he had not committed error at all, and Justice Scalia, writing for the Court, declared it “clear that the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts to a violation of one of those ‘few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury’s functions’….” (His quotation was from O’Connor’s concurring opinion in Mechanik.) It is true that in other decisions—notably Bank of Nova Scotia v. U.S., 487 U.S. 250 (1988) and U.S. v. Sells Eng., Inc., 463 U.S. 418 (1983)—the Supreme Court has stressed the importance of Rule 6(e)2 in protecting the fairness and efficiency of the grand jury proceedings themselves.
But nothing in these opinions rules out the possibility that a violation of the rule might also, in some circumstances, compromise the fairness of the later criminal trial. Grand jury testimony is not subject to cross-examination (ordinarily a witness is not even allowed to have a lawyer present) and the rules of admissibility of evidence are much more lax than the rules governing admissibility in a criminal trial. The Supreme Court has not denied that a later trial could be compromised if leaked grand jury testimony had been given such publicity that a jury could not be impaneled that was unfamiliar with it. Clinton’s case was even more extreme: the grand jury transcripts were actually furnished to the Senate, which was the jury that tried him.
Posner’s most frequent and fervent criticism of the academic scholars who opposed impeachment is that, although they often argue for the importance of moral and political principle in public affairs, they did not proclaim Clinton a moral reprobate. In fact, most of them did criticize Clinton’s personal morality, or took care to say that they were not endorsing it. But they all argued that, as a matter of political principle, his personal morality was irrelevant to the impeachment question, and a great show of moral indignation against him would have undermined their point. The most irritating section of the book is a long piece of psychobabble explaining why so many academics supported Clinton: Posner thinks they instinctively protected him as the enemy of their own enemies. He prefers cynical to simple explanations, but in this case a simple explanation is more persuasive. They were committed, not to Clinton, but to the Constitution. They wanted to protect it from sermonizing hypocrites.
'An Affair of State': An Exchange April 27, 2000
Some of these books have had considerable influence on legal scholarship—according to a recent study, one of them, The Economics of Justice, is the fifth most frequently cited book about law written after 1977. See Legal Information Alert, Volume 18, No. 8 (September 1999). ↩
Posner, Economic Analysis of Law (Little, Brown, third edition, 1986), pp. 139-144. ↩
Posner, “An Economic Theory of the Criminal Law,” 85 Columbia Law Review 1193, p. 1199. He adds that there are other reasons for banning rape, and would presumably accept that rape should be banned, quite apart from economic theory, because it is a terrible violation of the victim. But the other reasons he lists are also economic: the fact that there are often consensual substitutes for some rapes, and that prohibiting rape would encourage some would-be rapists to engage in economically more productive activities. ↩
For a statement of this important modification in his views, see Posner, “Problematics of Moral and Legal Theory,” 111 Harvard Law Review 1637 (1998), p. 1670 and note 62. ↩
The important chapters of Problematics are an edited version of the Oliver Wendell Holmes Lectures that Posner gave at the Harvard Law School in 1997. The lectures were printed in the Harvard Law Review (see preceding footnote) together with comments by a number of scholars (including my own comment, “Darwin’s New Bulldog,” at p. 1718 and a response by Posner at p. 1796) in the same issue. ↩
The “revered national symbols” that Posner has in mind are the anterooms of the Oval Office. ↩
The accusation was denied by Secretary of Defense Cohen, a former Republican senator, who said that the raid had been planned for the day it took place for several months. “I am prepared to place 30 years of public service on the line,” he declared, “to say the only factor that was important in this decision is what is in the American people’s best interest.” The Chairman of the Joint Chiefs of Staff, Gen. Henry H. Shelton, declared that, “Militarily it was the right decision, the right date, and that decision was made back in November.” It is not credible that these officials would lie to protect Clinton. Later in the book, Posner edges closer to hinting that he believes the charge true: “I cannot find any significant intersection [of the Lewinsky affair] with the President’s executive actions until the attack on Iraq in December 1998.” Still later he writes: “The general view of Clinton is that after a rocky start he became and remained (at least until impeachment week when he bombed Iraq) a good president in the sense of effectively discharging the executive duties of his office.” ↩
Starr discussed and refused to rule out a later criminal prosecution during his impeachment testimony, and his office then declared itself considering three courses: indicting and trying Clinton while he is president, doing both after the end of his term, or secretly indicting him while president and trying him afterward. See Don Van Natta Jr., “Starr Is Weighing Whether to Indict Sitting President,” The New York Times, January 31, 1999, p. A1. For a discussion of whether a president may be prosecuted while in office, see Linda Greenhouse, “Indicting a President,” The New York Times, February 1, 1999, p. A1. Politicians who have called for a criminal prosecution include Arlen Specter, a moderate Republican senator from Pennsylvania. See Specter, “Instead of Impeachment,” The New York Times, November 11, 1998, p. A27. ↩
This canon was adapted from Rule 2(B)9 of the ABA Model Code of Judicial Conduct. That code adds the qualification, however, that comment on a pending or impending case is prohibited only when the statement “might reasonably be expected to affect [the trial’s] outcome or impair its fairness.” The US Code pointedly omits that qualification. ↩
Andrew Sullivan, “A View From the Bench,” The New York Times Book Review, September 26, 1999, p. 13. ↩
For an extended discussion of the activities of these lawyers (who included, as Posner scrupulously points out, Richard Porter, one of his former law clerks), see Jeffrey Toobin, A Vast Conspiracy (Random House, 1999). ↩
See Jones v. Clinton, 36 F. Supp. 2d. 1118. ↩
Evidence of the Lewinsky affair would not have been admissible (though Posner suggests that it would have been) simply to show that the President was willing to be fellated by subordinates. See Robert W. Gordon, “Imprudence and Partisanship: Starr’s OIC and the Clinton-Lewinsky Affair,” 68 Fordham Law Review 639 (1999). Professor Gordon concludes that Clinton’s statements in the Lewinsky deposition were not material. See also Charles W. Collier and Christopher Slobogin, “Terms of Endearment and Articles of Impeachment,” 51 Florida Law Review 615 (1999). ↩
Posner’s mistake may be due to his failure to distinguish standards for the materiality of false statements in a grand jury hearing, or other proceedings investigating possible crimes, from those in civil cases, like Jones v. Clinton, which are more restrictive. Posner cites only a criminal investigation case, U.S. v. DeZarn, 157 F.3d 1042 (6th Cir. 1998), and ignores cases ruling on materiality in civil suits, such as U.S. v. Holley, 942 F.2d 916, (5th Cir. 1991); U.S. v. Adams, 870 F.2d 1140, (6th Cir. 1989); U.S. v. Clark, 918 F.2d 843 (9th Cir. 1990); and U.S. v. Kross, 14 F.3d 751 (2d Cir. 1994). Some of these cases suggest a very narrow test for materiality in civil proceedings: a statement is material if the truth would have been relevant in the civil trial itself. Others suggest a broader test: it is also material if the truth would have led to other evidence that would have been relevant. Clinton’s statements about Lewinsky would not seem material to the Jones case, beyond a reasonable doubt, under either the narrow or the broader reading. ↩
See U.S. v. Gaudin, 515 U.S. 506 (1995), explicitly applied to perjury in Johnson v. U.S., 520 U.S. 461 (1997). Posner does not think that Congress should have applied some lower standard in considering whether the President was guilty of perjury than a jury would apply: he says that “it would be anomalous, or at least peculiar, to [remove a president] on less evidence than would be required in an ordinary criminal case.” ↩
See Meyers v. U.S., 84 U.S. App. D.C. 101 (1948) and U.S. v. Brumley, 560 F. 2d 1268 (5th Cir. 1977). Meyers was cited approvingly by the Supreme Court in Christoffel v. U.S., 338 U.S. 84 (1949). ↩
Section 1512 of the United States Code declares that no one is guilty of “witness tampering” for simply asking someone else to lie: he must use force, harassment, or deceit. The courts are split on whether another section of the Code—section 1503—makes simply asking someone to give false testimony an obstruction of justice. For a statement of the disagreement, see U.S. v. Kulczyk, 931 F.2d. 542 (9th Cir. 1991). ↩
See Gordon, “Imprudence and Partisanship.” Here is his summary of Starr’s conduct: “Just as dangerous as the imprudent prosecutor who thinks he must pursue with indictments every apparent lawbreaker who appears in his sights, is the partisan prosecutor who fixes his sights on a demonized target and instructs his staff to find something, anything, they can pin on him, or who allows his office to become the instrument of private or political vendettas or extortion.” ↩
I discuss these supposed mistakes in Appendix 1 at the end of this article. ↩
I should acknowledge that Problematics is very critical of my own work; indeed the Economist called its “attacks” on me “near-hysterical.” (See The Economist Review, September 18, 1999, p. 8.) Just for the record, I shall shortly post an account of Posner’s criticisms, and try to correct his misleading reports of my views, in a dedicated page of the New York University website: www.nyu.edu/gsas/dept/philo/faculty/dworkin/papers/posner.html. ↩
See my Life’s Dominion (Knopf, 1993), pp. 54-55 and 249, note 4. ↩
See Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, “Assisted Suicide: The Philosophers’ Brief,” The New York Review, March 27, 1997, and Ronald Dworkin, “< a href="/articles/archives/1997/sep/25/assisted-suicide-what-the-court-really-said/">Assisted Suicide: What the Court Really Said,” The New York Review, September 25, 1997. ↩
Different philosophers would, of course, answer the question of fairness differently: utilitarians, for example, would say that the restrictions would not be unfair if they would improve average pleasure or happiness, in the long run, even counting the effects on those who would be deprived of lawsuits. But utilitarianism is a very controversial moral philosophy, and advising judges to take it up is advising them, not to avoid philosophical controversy, but to dive in headfirst. ↩
That general understanding of the constitutional requirement was defended, for example, in a full-page New York Times advertisement signed by a number of scholars, writers, and others in September 1998, in letters signed by hundreds of legal scholars and historians in October of that year, and by a number of scholars in testimony before the House Judiciary Committee later in the year. ↩
See Posner, The Problems of Jurisprudence (Harvard University Press, 1990), Overcoming Law (Harvard University Press, 1995), and Law and Legal Theory in England and America (Oxford University Press, 1996). ↩
See, for example, his article “The Moral Minority,” The New York Times Book Review, December 19, 1999, p. 14. ↩