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Philosophy & Monica Lewinsky

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.

2.

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

  1. 14

    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.

  2. 15

    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.”

  3. 16

    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).

  4. 17

    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).

  5. 18

    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.”

  6. 19

    I discuss these supposed mistakes in Appendix 1 to the end of the online version of this article, on the Internet at www.nybooks.com/nyrev.

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