‘An Affair of State’: An Exchange

To the Editors:

I don’t make a habit of complaining about negative reviews of my books, but Ronald Dworkin’s review [“Philosophy & Monica Lewinsky,” NYR, March 9] of two recent books of mine, An Affair of State and The Problematics of Moral and Legal Theory (both published by Harvard University Press in 1999), is so unmistakably a personal attack that I would be poor-spirited not to respond.

He accuses me of a breach of judicial ethics in having commented publicly in An Affair of State on an “impending” case, namely a possible prosecution of President Clinton for perjury and related offenses growing out of his affair with Monica Lewinsky and the ensuing investigation; and let me begin with that charge. Dworkin is correct that a judge is not supposed to comment publicly on an “impending” case as well as a “pending” one. But the dictionary defines “impending” as “about to happen” or “imminent,” and a prosecution of President Clinton, while conceivable as a theoretical possibility, is not imminent and in fact will almost certainly never happen. Furthermore, I emphasized in the Introduction to my book (p. 7, n. 13), alluding to that remote possibility, that should the President ever be prosecuted for crimes growing out of the Lewinsky imbroglio, his guilt or innocence will be decided on the basis of the evidence presented at his trial, not the evidence compiled by the Independent Counsel and discussed in my book, and therefore “nothing in the book should be taken to prejudge any future criminal or civil proceeding arising out of the matters discussed in it” (id.). If Dworkin wishes to call me “injudicious” in writing about a controversial episode so soon after its conclusion, that is a matter of opinion, to which my only reply is that I had hoped that my treatment of the controversy was sufficiently judicious to deflect such a criticism. But to suggest that I am unethical exceeds the bounds of fair comment. Dworkin himself asserts that my motive in writing the book was not political, but academic. The book was published by an academic press and is continuous with my academic writings. Judges, I need hardly add, are permitted by the very code he quotes against me to write academic books and articles. The list of academic writings by judges is long and honorable and includes a book by Chief Justice Rehnquist—on impeachment.

It is ironic that Dworkin should invoke a speech-restrictive rule of judicial conduct (the no-public-comment rule) against a critic of his. Dworkin plumes himself on his devotion to the free-speech clause of the First Amendment, which he interprets so broadly as to have incurred the wrath of feminist critics of pornography. He does not say whether he thinks the no-public-comment rule a good one (as do I) or a bad one; but it is surprising that he of all people should interpret it so broadly as to make it virtually impossible for a judge to write on public affairs. Almost no issue of policy has a smaller probability of someday becoming a legal case than that President Clinton will someday be prosecuted for the offenses of which the Senate acquitted him. Dworkin must know, moreover, that violations of the Code of Conduct for United States Judges are punishable by official reprimand and worse, and therefore that accusing a judge of violating the ethical limits on public comment is likely to discourage judicial free speech.

A further irony is that Dworkin criticizes me at the beginning of his review for speaking out about the impeachment controversy, and at the end for failing to make up my mind whether I think Clinton should have been impeached and convicted. I should at least get a few points for my lapse into discretion.

Another ethical issue lurks about the review, though not one that involves a threat of formal sanctions—whether a journal should commission a book review by a person who is a target of criticism in the book (in this case both books) that he or she is asked to review. I make acerbic, though I hope accurate, criticisms of Dworkin’s strident public pronouncements on the impeachment controversy (see pp. 233-234 and 237-241 of An Affair of State) and of his legal and philosophical stance.¹ I have for many years now in books and articles been challenging his pretensions as a constitutional scholar and public intellectual. Although I respect a number of his contributions to jurisprudence, he cannot help regarding me as an intellectual enemy and treating me accordingly; the tone of the review is a giveaway. Most journals avoid giving books to the authors’ enemies to review,² especially if the “enemy” is a principal target of criticism in the very book he is being asked to review; and, if scrupulous, a person asked to review an enemy’s book turns down the invitation. Dworkin acknowledges that Problematics criticizes him (p. 51, n. 20), but he does so in a flippant way that conceals the twenty years of mutual intellectual enmity, punctuated by increasingly acrimonious exchanges, that has defined our relationship. He does not acknowledge that he is pointedly criticized in An Affair of State as well, the book of mine at which he aims his sharpest barbs. By acknowledging criticism of him only in the other book, he implies that An Affair of State does not criticize him, and this enables him to pose as a disinterested critic of that book, the one he savages.

I am not trying to silence a critic, and thus merely turning the tables on Dworkin. He has every right to criticize me, as vehemently as he wants. The question is whether he should do so in the guise of a book review. Readers bring different expectations to a book review than to a critical essay. They assume that the reviewer is neither the close friend nor the archenemy of the author. Readers thus are deceived when the review form is used to disguise academic warfare.

Dworkin’s review is harsh and biting, which is fine, but also pervasively inaccurate and misleading, which is not so fine. Some of its errors, such as the confusion of a mediator with an arbitrator (very different animals in the law), may be a product merely of carelessness and haste. Others bespeak a lack of familiarity with the voluminous record compiled by the Independent Counsel, which Dworkin does not claim to have read and obviously has not, and with the intricacies of federal criminal law and procedure; he has no experience in the administration of criminal justice. Other errors in the review are perhaps best regarded as simply exaggerations, for example his statement that the Whitewater investigation, which led to several convictions, produced “no results” (p. 50). But Dworkin is much too smart to make as many false and misleading statements as he does in this review. One is reminded of his notorious attack on Robert Bork when Bork was nominated for the Supreme Court,³ an attack Dworkin thought well enough of to republish many years after the threat of Bork’s becoming a Supreme Court Justice had passed.⁴ One can only speculate on why has he singled out An Affair of State for similar treatment. Despite appearances, we have no fundamental disagreement over the Clinton scandal/impeachment saga. The picture of Clinton that emerges from Dworkin’s review is not a flattering one, while the picture of Clinton’s tormenters that emerges from my book is not a flattering one either; and while Dworkin is emphatic that Clinton should not have been impeached and convicted, my book registers no disagreement with that conclusion but only with the arguments that Dworkin makes en route to it.

By now the reader will be impatient for my bill of particulars, and here it is:

1. Dworkin attributes to me the view that “mothers should be permitted to auction off their newborn babies” (p. 48). In support of this attribution he cites my textbook discussion of adoption.⁵ I point out the adverse economic consequences of the present system of regulated adoption, under which a pregnant woman is forbidden to accept a fee for giving up her parental rights to adoptive parents. I do not argue that the economic consequences of this prohibition, though they are indeed serious and adverse (just as with other forms of price control), outweigh whatever ethical or other objections might be raised to changing it. Such a judgment would be out of place in a book on the economic analysis of law. The furthest I have gone in the direction indicated by Dworkin’s characterization of my view is to suggest, as an experiment, that an adoption agency be permitted to pay a pregnant woman contemplating abortion to carry the child to term and give it up for adoption rather than aborting it.⁶

2. I have never taken the position that infanticide, Nazism, and the other enormities listed by Dworkin are not “immoral” (id.); that would be as absurd as it would be offensive. The argument of The Problematics of Moral and Legal Theory is that when we call practices “immoral” we do so in reference to our own values. The people who make this argument, people like Richard Rorty and me, are not immoralists; we are pragmatists; we simply believe that there is no reliable external perspective from which to evaluate competing moralities. Societies that practice infanticide do not regard infanticide as immoral, and we civilized Americans cannot say they’re “wrong” to do so unless we add—by our lights. Dworkin and I inhabit the same moral universe and hold the same moral views, except possibly about the ethical limits of polemic. Our disagreement is over the possibility of grounding our moral opinions in objective, universal truths. He believes in natural law; I do not; ours is a philosophical disagreement, the sort of thing that he discusses in the last part of his review.

3. Far from being “drenched in moral indignation” (id.), An Affair of State has struck the Clinton haters as tepid and equivocal. And while as Dworkin says the book “chastises academics and intellectuals who opposed impeachment” (id.) it also chastises the academics and intellectuals (such as William Bennett, Robert Bork, and David Frum) who supported impeachment. The only two negative reviews of my book that I had seen before I read Dworkin’s review were written by right-wingers who consider me too easy on President Clinton and too hard on his tormenters.⁷ Tell those reviewers that I am writing for my “conservative claque” (p. 50) and that I “back…the Republican leadership on several key issues” (p. 48), and watch their jaws drop. Only toward the end of his review does Dworkin acknowledge that nowhere in the book do I suggest that President Clinton should in fact have been impeached or convicted.

4. I stand by the indented quotation on the first page of Dworkin’s review, the litany of the President’s misdeeds. The passage is not a partisan summary.⁸ I consider it the common ground on which all neutral observers of the affair stand—but that’s a matter of opinion. What is not a matter of opinion, but a distortion, is to say, as Dworkin does (p. 48 and n. 7), that my book hints at agreement with the charge that the President ordered the bombing of Iraq to divert attention from his own misconduct (the “Wag the Dog” charge). I said only that in the nature of things such a charge can be neither proved nor disproved. Dworkin omits to mention that I pointed out that the defense establishment thought the bombing justifiable; they had wanted to do it for a long time (see An Affair of State, p. 30). But in the past the President had rejected many recommendations of his military advisers, and the question, which will probably never be answered, is why he was of a different mind in December 1998.

The indented quotation contains the phrase “revered national symbols” (such as the Presidency, the White House, and the Oval Office). Dworkin suggests that I meant by this term the “anterooms of the Oval Office” (NYR, p. 48, n. 6). The paragraph from which the quotation comes refutes any such absurd idea (see An Affair of State, p. 157). Not absurd, but still erroneous, is the impression Dworkin creates that I believe that defiling revered national symbols, such as the Oval Office itself, is a proper ground for impeachment and removal from office. The chapter from which Dworkin is quoting points out that the nation is moving away from a concept of a “charismatic” presidency in which symbolic affronts might be thought an appropriate basis for impeachment and removal from office (see especially pp. 167-169), and I make no criticism of that movement.

I stand by the indented quotation but it does not give a complete view of my position on the scandal/impeachment saga. It would have been a service to readers (honest book reviews try to give readers an accurate sense of the book) had Dworkin quoted the following passage as well: “One begins to see why the whole Clinton-Lewinsky-Starr-impeachment business is so baffling. Even after unsubstantiated conjectures (such as Starr’s being obsessed with sex, or Clinton’s having tried to get Lewinsky a job so that she wouldn’t tell the truth in the Paula Jones case) are put to one side, there are two diametrically opposed narratives to choose between. In one, a reckless, lawless, immoral President commits a series of crimes in order to conceal a tawdry and shameful affair, crimes compounded by a campaign of public lying and slanders. A prosecutor could easily draw up a thirty-count indictment against the President. In the other narrative, the confluence of a stupid law (the independent counsel law), a marginal lawsuit begotten and nursed by political partisanship, a naive and imprudent judicial decision by the Supreme Court in that suit, and the irresistible human impulse to conceal one’s sexual improprieties, allows a trivial sexual escapade (what Clinton and Lewinsky called ‘fooling around’ or ‘messing around’) to balloon into a grotesque and gratuitous constitutional drama. The problem is that both narratives are correct.”⁹

5. Dworkin’s quotation (p. 48) of my characterization of Clinton’s health plan as “socialistic” is taken out of context, creating the impression that I am a partisan critic of the plan. I am nothing of the sort. The quotation is from a passage (An Affair of State, p. 202) in which I am describing the view that libertarian conservatives hold of President Clinton and explaining why they are inclined to approve of Clinton’s Presidency on balance, though with reservations about some of his proposals, such as the health plan, which obviously a libertarian conservative would describe as socialistic.

6. Dworkin is mistaken to doubt the materiality of the questions about Lewinsky that President Clinton was asked when he was deposed in the Paula Jones case. A deposition is a search for evidence that might be usable at trial. If the Jones case had been tried and if at the trial President Clinton had denied ever having propositioned or had a sexual encounter with a subordinate, the transcript of truthful answers to the questions about Lewinsky at his deposition could have been used on cross-examination to undermine his trial testimony and thus sway the jury against him. No more is required to show materiality.¹⁰

Dworkin says that lying about an extramarital affair would “not become material just because [the liar] would rather have settled the case than risked his marriage by telling the truth” (p. 49). This is true, but irrelevant, and not only because Clinton did not want to settle the case (he refused to do so until after the scandal broke), as he could have done without lying; and not only because his lies were material. In addition, a lie that intentionally derails or delays a legal proceeding, sending the other participants on a wild-goose chase, is a form of obstruction of justice even if it is not material to any issue in the case.

The President’s specific denial of sexual relations with Lewinsky may not have been as serious as some of Clinton’s other lies, but there is no doubt about its materiality. Dworkin confuses the gravity of an offense with whether guilt of the offense is provable beyond a reasonable doubt. If a person is charged with two felonious acts, and the first is less serious than the second, it doesn’t follow that the prosecution would have more difficulty proving his guilt of the first one beyond a reasonable doubt.

7. Clinton gave Lewinsky more gifts on the same day on which he is alleged to have asked his secretary Betty Currie to recover all his gifts to Lewinsky. For Dworkin this fact “alone” is enough to refute the allegation (NYR, p. 50). But the President gave Lewinsky the additional gifts in the morning and Currie retrieved them in the afternoon, and, as I explained in An Affair of State (pp. 33-34), he may have wanted to keep Lewinsky “on board” by a demonstration of his generosity and good will toward her and only later that day thought better of his impulse and instructed Currie to retrieve, presumably only temporarily, all the gifts he had given her on that day and earlier.

8. The President’s lie regarding Kathleen Willey was not, as Dworkin suggests, denying that he had assaulted her, an unsubtantiated charge. The lie was denying that there had been an erotic encounter between them at all. The only thing that remains in doubt is who initiated it. The encounter, whoever initiated it—a sexual encounter with a subordinate—was material for the same reason that the questions about Lewinsky that Clinton was asked in the Paula Jones case were material. Had the Jones case gone to trial and Clinton denied any hanky-panky with subordinates, a truthful answer to the deposition question about Willey could have been used on cross-examination to challenge his credibility and so make it likelier that a jury would believe Paula Jones’s version of what happened between her and Clinton in the Excelsior Hotel back in 1991.

9. Dworkin fails to note the many instances in which I argue that the record compiled by the Independent Counsel falls short of proving the President guilty of criminal activity (such as the Jordan job search for Lewinsky), though many critics of the President believe otherwise and fault me for disagreeing with them. By omitting these instances Dworkin makes my treatment of the evidence look partisan and one-sided, while by failing to discuss the full range of perjurious and otherwise obstructive criminal activity for which there is considerable evidence in the Starr Report and elsewhere Dworkin depreciates the scope and gravity of the President’s misconduct and thereby sets the stage for asserting the moral equivalence of that misconduct to the pratfalls and excesses of the President’s attackers. (He equivocates by calling their misconduct a “moral crime” (p. 50).)He implies for example that the only possible lie the President told the grand jury concerned his sexual relations with Lewinsky; he ignores Clinton’s many other lies to the grand jury (listed at pp. 46-47 of my book). He goes so far in his campaign of apologetics for the President as to express doubt that asking someone to lie under oath is a crime unless coercion or deception is used. Asking someone to lie under oath is the crime of subornation of perjury, which, as An Affair of State explains (see pp. 36-55), is one of the crimes embraced by the umbrella term “obstruction of justice.” Dworkin seems unaware of the statute that criminalizes subornation of perjury in federal judicial proceedings.¹¹

10. Dworkin refers to a public letter in which several hundred law professors asked Congress not to impeach the President. He dates the letter to October 1998¹² and says it “expressed no opinion about perjury” (p. 51). Indeed it did not—that was my point. The letter evades the plain fact that by November 1998 it was no longer possible, for anyone informed about the matter, to sit on the fence, saying as the letter does, “If the President committed perjury regarding his sexual conduct, this perjury involved no exercise of Presidential power as such” (emphasis in original). There was no longer any “if” about it, to anyone who had followed the investigation carefully; and those who had not had no business signing a letter in their capacity as law professors, thus representing themselves to have a professionally responsible opinion.

There is much that I disagree with in the rest of Dworkin’s review as well, where he criticizes The Problematics of Moral and Legal Theory and then comes back to An Affair of State and whacks my view of the proper approach to deciding whether a president should be impeached. But what Dworkin says about these things are for the most part matters of fair comment. Anyone who cares to read The Problematics of Moral and Legal Theory will find in it my responses to Dworkin’s criticisms—for there is nothing of substance in the review about our philosophical disagreements that he has not published before and I have not replied to before. I shall merely record my incredulity at his claim that his brand of moral philosophy, what I call “academic moralism,” is of “growing importance…in American legal education” (p. 52), and at his charge that I think philosophy has nothing to say about issues of fault, intent, causation, meaning, and responsibility in the law. He must know that I have used philosophy both in my academic writings and in my judicial opinions to illuminate those issues. But the branches of philosophy on which I have drawn are epistemology, philosophy of science, and philosophy of action, rather than moral or political philosophy, concerning which I indeed have profound reservations.

I point out in Problematics that the preachments and the practices of academic moralists often don’t coincide. This review, in which we see Dworkin the academic moralist steering by a wobbly moral compass, is more evidence for the point.

Richard Posner
Chief Judge
US Court of Appeals for the Seventh Circuit;
Senior Lecturer University of Chicago Law School

Ronald Dworkin replies:

Judge Posner says that my review of his two books was a personal attack, that it went beyond the boundaries of fair comment, that it was unethical of me to have reviewed his books at all, that I steer by a “wobbly moral compass,” that my review was “pervasively inaccurate and misleading,” that my “errors” show “a lack of familiarity” with the record and “the intricacies of federal criminal law and procedure,” and that for many years he has been challenging my “pretensions as a constitutional scholar and public intellectual.” This carpet-bombing was apparently provoked by my doubts about whether his book, An Affair of State, violated the canons of judicial ethics, and I shall begin by defending those doubts. I shall then comment, one by one, on the “particulars” he offers to support his charge of pervasive inaccuracy. He contests only a relatively few of the complaints I made about his own legal arguments and judgments in my review and its appendix, but I must comment in some detail on the arguments he does make. It is disturbing that though his challenges are delivered with great confidence, they are all, with one partial exception, based on serious misreports of his books or my review, or on fresh legal mistakes.

1.

Did my discussion of judicial ethics go beyond the bounds of fair comment? It was he, not I, who raised the ethical issue. He said, in Affair, that though the canons do not permit judges to enter political controversy, his book was permissible because the opinions he expressed were matters of consensus across the political spectrum. Was it unfair to quote his politically charged claims that were certainly not matters of consensus? He said that though the canons do not permit judges to comment on pending cases, that did not prevent him from declaring Clinton guilty of various felonies because no cases were actually pending against the President. Was it unfair to point out that he had misquoted the canon, which actually forbids comment on impending as well as pending cases, and then to consider whether his declarations of Clinton’s guilt were permissible given the correct statement of the canon? If he did not wish his ethics to be discussed, he should not have raised the issue and announced himself innocent and “unapologetic.”

He now says, in this exchange, that he did not offend the canon that prohibits comment on cases, even correctly stated, because “the” dictionary defines “impending” as “about to happen” or “imminent.” But other dictionaries define “impending” as “threatening” rather than “imminent,”¹³ and the evident purpose of the canon would be defeated by allowing judges to comment freely on threatened prosecutions when these would not be filed for several months or were not yet certain to occur, particularly if the judge is senior and prominent, his opinions are widely reported, and he claims to have examined the record in great detail. An advance declaration from such a judge might affect not only an eventual trial but a prosecutor’s decision whether actually to seek an indictment. Would anyone think it proper for a sitting federal judge to study the evidence the Justice Department had collected against a suspected gangster and then announce that, on that record, the suspect was guilty? Even if the judge thought, on reasonable grounds, that the threatened prosecution would probably not take place for two years, and perhaps never?

“Impending” should be understood to include prosecutions that responsible officials have announced that they are actively considering, until these are no longer under active consideration. Clinton has been repeatedly threatened with criminal prosecution following the end of his presidency, and the threat remains. Starr mentioned the possibility in his impeachment referral and refused to rule it out in his testimony, and his staff told The New York Times, after Clinton’s Senate acquittal, that it was weighing the timing and mechanics of such a prosecution. Last month The New York Times reported the opinion of informed lawyers that Robert W. Ray, Starr’s successor as Independent Counsel, “has not yet resolved the issue of whether Mr. Clinton could be charged with crimes after he leaves office,” and that “Mr. Ray and his associates were planning to take yet another look at that question.”¹⁴ The columnist William Safire, after an interview with Ray, wrote that “logic suggests that [Ray’s purpose in hiring new prosecutors] is to position the independent counsel for a prosecutorial decision next January…. The law will not be finished with Clinton’s deception under oath until the appointed prosecutor decides whether or not to seek an indictment.” Safire warned the President to beware “the afternoon of Inauguration Day.”¹⁵

A prosecution would, of course, be a terrible mistake, and that mistake is not inevitable or even, in my own view, more likely than not. But prosecution was certainly widely discussed and under active consideration when Posner wrote and published, as it is now, and he should not have prejudged guilt (or for that matter innocence) in the way he did. He now says that a prosecution will “almost certainly never happen.” His extreme confidence seems unjustified, given the history I just described. He appeared less confident when his book was published: he said that “President Clinton and other participants in the ordeal remain in some jeopardy of being prosecuted for crimes,” and he discussed a potential prosecution on five other occasions, four times raising the question whether Clinton has the power to pardon himself in advance.¹⁶

Posner says (and has told the press) that if I am right he could be reprimanded.¹⁷ That was certainly not my intention or expectation: on the contrary, I said that since it is “unclear” what “impending” means, the ethical question was one for him to decide for himself, and that “we must respect his decision.” (Judges should be disciplined only for flagrant violations of the “no political activity” and “no comment” rules.) Posner also now appeals to the First Amendment: he says that my interpretation of the canons would make it impossible for judges to write about any matters of political importance. But that is unpersuasive: as Posner’s own career shows, judges can contribute effectively to public discourse without partisan claims and without prejudgments of pending and impending trials.¹⁸

Posner’s other charges of my impropriety center on his claim that we are “intellectual enemies” or (later in his letter) just plain “enemies,” or (still later) that I am his “archenemy.” I was sorry to learn of this opinion; I count as friends a considerable number of scholars about whom I have written much more, much more critically, and about issues much more central to my academic work. He says that I should have assumed that we were enemies because he has been engaged, over many years, in puncturing my “pretensions.” He has never notified me of that project before, however. Quite the contrary.¹⁹

Nor is my review a “personal attack.” His own book contains passages that might be so characterized: he reports that Clinton is “reckless, lawless, immoral,” that his behavior was “reprehensible” and “repulsive,” that Hillary Clinton and Sidney Blumenthal were cogs in a “slander machine,” that Alan Dershowitz’s book on the impeachment was really an attempt to show why Clinton should have hired him as his lawyer, that he, Posner, has unmasked the “mediocrity” of the various intellectuals he named and criticized, and that the academic lawyers who signed a letter opposing impeachment are “the animal that likes to see its name in print.” I find no criticism in my review that is even remotely as personal.

Was it unethical of me to review his books because he criticized me in them? Any such rule would make reviews of books that are critical of a broad sweep of academic opponents less interesting and valuable.²⁰ The New York Review of Books, in any case, publishes review-essays rather than short reviews, and its editors have often encouraged scholars to continue academic controversies before its intellectually sophisticated readership, by inviting reviews from people who have argued with the author in print before, and then making its pages available for a long reply by that author, as the Review has now given Posner all the space he asked for.²¹ He complains that I did not sufficiently disclose our past controversy. But I said that he had criticized me so vehemently in one book that the sober Economist had called his attack “near-hysterical,” and I identified myself as the target of several of his criticisms in the other book in the appendix to which Ireferred readers for a discussion of his charges against academics who had written about the impeachment.²²

2.

I must now comment on the “particulars” Posner offers to support his charges of my “pervasive” inaccuracy. I shall number my comments to match his, so that I do not need to repeat what he said, and I shall treat certain further, unnumbered charges in a footnote.²³

1. My account of his “baby selling” proposal—his phrase—is accurate. He says that though in his earlier writing he pointed out the many advantages of allowing mothers to sell babies, he did not consider whether these are outweighed by “ethical or other objections” because that would have been “out of place in a book on the economic analysis of law.” But in fact (in the edition of his book he says Ishould have cited) he did discuss a variety of ethical objections to baby selling—including, for example, that the practice would mean that “the rich would end up with all the babies, or at least all the good babies”—and he rejected them all. According to one participant in a forum in which Posner defended his suggestion, “This forum marks the fourth time in a decade that Judge Posner has published an iteration of his baby-selling proposal. Critics have left him unmoved. Changes in our existing baby markets—some of them significant—find him uninterested. He remains as convinced as when he first wrote that allowing women to profit from the relinquishment of their children promises a synoptic solution to a social problem he terms pressing—the short supply, relative to demand, of healthy, white, adoptable babies—and to other persistent reproductivity problems as well.²⁴

2. I did not say that Posner thinks infanticide and slavery are not immoral. I simply reported his own statements that he would “hesitate” to call someone who sincerely advocated infanticide immoral, and that though we call Nazism, antebellum slavery, and Soviet tyranny immoral, “That is just an epithet. What we should be saying is that the codes of these societies were not adaptive.” It is puzzling, however, why, if it is “absurd” to deny that infanticide is immoral, we should hesitate to call someone immoral who advocates it.

3. Why should the fact that two of the right-wing commentators who reviewed Posner’s book thought he did not go far enough in that direction show that my own descriptions were inaccurate? I did not say that he had taken the most extreme anti-Clinton position possible. I said that it was injudicious of him to take any side in political controversies—against the Republican leadership as well as for it—and that he often took the Republican leadership’s side when his arguments for doing so were weak.

4. Posner misreports what he said in his book and what I criticized. He said, there, that the paragraph Iquoted is a matter of bipartisan consensus. He was wrong: most Democratic officials would not agree that Clinton committed “repeated and varied felonious obstructions of justice over a period of almost a year,” or that the “ethical tone” of the entire Clinton administration raised “troubling questions.” Now he says only that these claims are accepted by “neutral observers.” That is a much weaker claim, and would not excuse Posner’s declarations even if true, because judges should not take sides in political controversies even when people who are not committed politically or emotionally to either side (if that is what “neutral” means) would agree with them. But his claim is still incredible: even people who are neutral in that sense are hardly agreed that Clinton committed “repeated and various” felonies.

Nor did I say that the quoted paragraph was “extreme even by partisan political standards,” as Posner suggests Idid in a footnote. Iused that phrase to describe his “wag the dog” charge that the rest of the paragraph discusses. He said, in his book, that it is “impossible to determine” whether Clinton bombed Iraq to divert attention from the impeachment, and I said that he had ignored the evidence of Defense Department officials that seems decisive that Clinton did not do that. Now Posner says that he himself referred to the opinion of those officials. But his reference was so inaccurate that it amounted to ignoring the evidence, and, in spite of my reminder of the actual evidence, he repeats his mistake now. He said, and repeats, only that the Defense Department had for some time wanted to bomb Iraq, but the President had refused their advice, so that “the question, which will probably never be answered, is why he was of a different mind in December 1998.”

But, as I pointed out, the Secretary of Defense said that the raid had been planned for the day it took place for several months, so if Clinton changed his mind he did so months before the impeachment crisis, not in December in its midst. He also accuses me of a distortion because I suggested not merely that he thinks it impossible to decide whether the wag the dog charge is true, but that he hints that it is true. Ibased that suggestion, however, on a further statement in his book that he does not now mention: that he could find no “intersection” of the President’s affair with his executive actions until the Iraq bombing, which hints (at least) that the affair did influence that bombing. What else could “intersect” mean in this context?

On a different matter, Posner says that though he does regard the Oval Office as a “revered national symbol,” it is absurd to say, as I did, that he so regards its anterooms. Here is the sentence I had in mind: “President Clinton may be said without hyperbole to have defiled the Oval Office by his antics in the adjoining spaces in his office complex.” I do not see how what is done in the anterooms can defile the Oval Office unless the anterooms are, by extension, part of what is sacred.

5. In Affair, Posner did not say only, as he now suggests he did, that libertarian conservatives believe that Clinton’s health plan was socialistic. Here is the statement in question: “Libertarian conservatives… know he would have been happy to govern from the left—witness his socialistic health plan.” (emphasis added.) Not only does he declare his agreement that Clinton wanted “to govern from the left” (to say that someone knows something is to say that it is true) but he points to the “socialistic” health plan as indisputable evidence for that supposition. Later in the same paragraph, speaking even more plainly in his own voice, he said that “it is true that as soon as he was impeached, and accelerating with and after the 1999 State of the Union address delivered while the Senate trial was being conducted, the President shot off a veritable Gatling gun of expensive policy proposals, some of a socialist hue.” These two passages state Posner’s own opinion of the health care plan, and of the measures proposed in the address.

6. The most important of the legal mistakes I said Posner had made were his claims about the materiality of Clinton’s deposition statements in the Paula Jones case. He says that I confused “the gravity of an offense with whether guilt of the offense is provable beyond a reasonable doubt.” But I did not. I said that he had not shown that Clinton’s statements were material beyond a reasonable doubt, which has nothing to do with how grave his perjury would have been if it had been perjury. Posner had mistakenly set out, as the test of whether a statement is material, the test appropriate to a criminal or quasi-criminal proceeding, rather than a civil proceeding like Jones v. Clinton; and he had mistakenly argued that Clinton’s statements were material because he would rather have settled the Jones case than told the politically embarrassing truth about Lewinsky. Posner disowns that bad argument now (he says that my refutation of it is true but “irrelevant”) and offers two new arguments. But they are no better.

He says, first, that a false statement obstructs justice, even if it is not material, if it “intentionally derails or delays a legal proceeding, sending the other participants on a wild-goose chase.” But Clinton’s false statements about Lewinsky could not have derailed or delayed the Jones trial, among other reasons, because her lawyers already knew the truth from Linda Tripp, and because the trial would have been expedited rather than derailed or delayed if they had decided not to pursue the Lewinsky connection.

He says, second, that Clinton’s statements were material after all because, had he told the truth, his truthful statements could have been used to contradict him if he denied a relationship with Lewinsky at the actual trial. But since evidence of extramarital affairs, even with subordinates, is not admissible in a sexual harassment lawsuit unless those affairs were arguably themselves instances of harassment, Jones’s lawyers could not have asked Clinton about Lewinsky at the trial.²⁵ Posner cannot think that deposition statements are material whenever there is any chance that a defendant will contradict them in any remarks he might later make, material or immaterial. That would wholly erode the “informal privilege to lie” that Posner himself proposed as the point of the materiality requirement.

7. Once again, Posner misreports what I said. I did not say that the fact that Clinton gave Lewinsky new gifts in the morning proves Clinton’s claim that he did not ask for all his past gifts back in the afternoon. I said that it rebuts Posner’s claim that Clinton almost certainly did ask for all the gifts back. There is a great difference between those two propositions.

8. Yet another misreport. I did not deny that Clinton lied about a sexual encounter with Kathleen Willey. Posner had said, in his book, not just that Clinton lied but that he committed perjury in that lie. I said that he could not substantiate that charge because Clinton’s statement would have been material (in Willey’s case as in Lewinsky’s) only if he had initiated the encounter and her claim that he had is, as Posner concedes, “unsubstantiated.” (It is not even plain, I should add, that Clinton lied at all. He denied any sexual encounter with Willey, and those who have claimed that one took place have proved unreliable.)

9. I tried to show that Posner’s claim that Clinton “committed repeated and varied felonious obstructions of justice over a period of almost a year” was unjustified, and I therefore had no reason to mention the allegations of Clinton’s crimes that others had made but Posner did not. (Or—see his fifth particular—that he criticized the Clinton-haters and the Supreme Court as well as Clinton.) My worry, to repeat, was not that Posner took every conceivable opportunity to stretch doubtful legal arguments into a claim of Clinton felony, but that he took too many such opportunities. Why does he think that my statement, that Starr committed a moral crime by conducting what Posner himself describes as “a ‘sting operation’ against the President of the United States,” is an equivoca-tion? Does he doubt that there are moral crimes? Why does he persist in calling these moral crimes “pratfalls and excesses”? I do think that Clinton’s statements denying any sexual contact with Lewinsky were the most problematic of his statements before the grand jury, though nothing I said implied anything about other lies.

He says that because I discussed the question whether asking someone to lie constitutes an obstruction of justice, I must be ignorant of section 1622 of the federal code, which independently makes suborning perjury a crime. He is wrong. I discussed the question whether Clinton was guilty of suborning perjury under section 1622 before I took up, parenthetically, the distinct section 1512 issue. I quoted a case applying section 1622 to show that Posner was mistaken to accuse Clinton of suborning perjury by asking Lewinsky to lie. As that case (U.S. v. Brumley) holds, one cannot suborn perjury by asking someone to tell lies that are not material and hence not perjurious.

Posner is right, however, to point out that, in discussing the section 1512 issue I cited a case made obsolete by a change in that section, and I acknowledge the error. But the change has no bearing on Clinton’s case: as changed, the section forbids “corruptly” inducing someone else to lie in an official proceeding, which means asking him “to violate his legal duty” by committing perjury, that is, by telling a material lie.²⁶ Since Lewinsky’s lie would not have been material, Posner’s confident claim of a felony is therefore wrong under both of the two sections he discusses.

10. The letter Posner refers to was signed by several hundred academic lawyers who may well have disagreed about the perjury issue.²⁷ Some might have thought that Clinton had committed perjury in, for example, his grand jury testimony. Others might have thought that he had not, and still others might have had no opinion about that issue. They all thought—correctly—that even if Clinton had committed perjury, the perjury was not an impeachable offense. In these circumstances, it seems eminently sensible of the drafters of the collective letter to have said that even “if” Clinton had committed perjury, the perjury involved no exercise of presidential power, and hence was not a matter for impeachment. And, of course, Posner is wrong to say that “there was no longer any ‘if’ about it.” His continued insistence that Clinton was clearly guilty of perjury, beyond a reasonable doubt, is inexplicable.

Posner says, finally, that readers will find his answers to my arguments that his pragmatism is empty, and his jeremiad against moral and political philosophy misconceived, in his book, Problematics. I fear that they will not: the only answer Posner attempted is the claim of judicial consensus on important values that I mentioned and questioned in my review. They will find, however, a number of crude misreports of my own views and arguments, in several cases declaring as my opinions the opposite of what I had said. I listed fourteen of the most blatant of these misreports, comparing Posner’s statements with quotations from my own work, on a web page, at www.nyu. edu/gsas/dept/philo/faculty/dworkin/papers/ posner.html, and I sent Posner a hard copy.

He chose not to comment on my complaints, or even to acknowledge them, in this exchange. (That is his privilege, though I hope he will find another occasion to do so.) But he also chose to repeat one of the worst misreports I had mentioned—about my discussion of Robert Bork—and to rely on it as evidence that I am an unscrupulous critic. He says that I accused Bork of having no constitutional philosophy “well knowing that Bork had a fully articulated such philosophy.” Posner has made this charge on many occasions, including in Problematics, and in my website essay I reminded him, yet again, of the argument that I had actually made.²⁸ I said that Bork’s alleged “philosophy” is too inconsistent in theory, and too arbitrary in application, to count as a philosophy even on the generous standard for “having a theory” that Posner has himself set out. He may disagree with my view that Bork’s theoretical claims are arbitrary and inconsistent, though neither he nor Bork has ever attempted to answer my arguments. But it is bewildering that he should simply repeat that I “know” that Bork has a well worked out philosophy—now adding the ominous charge that my statement to the contrary is “defamatory”—when my articles so plainly prove that I do not believe this, and when he has so recently read my complaint against his prior misrepresentations on that score. What point can he think it serves simply to repeat what he knows is a mistake?