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Philosophy & Monica Lewinsky

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

  1. 25

    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).

  2. 26

    See, for example, his article “The Moral Minority,” The New York Times Book Review, December 19, 1999, p. 14.

  3. *

    See my “A Kind of Coup,” The New York Review, January 14, 1999.

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