Not-So-Grand Inquests.

• Author: Whittington, Keith E.
• Position: Review

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

Richard Posner has written a remarkably even-tempered and reasonable book about the impeachment of President Bill Clinton, a welcome contrast to the overheated rhetoric and raw emotions generated by the event itself. If you were to read only one book about the Lewinsky scandal--and really, who would want to read more than one?--this is probably the one to choose. It does not feature the salacious details or fiery calls to arms of the early scandal books, but it does offer a sober second look at the misconduct and cover-up that led to only the second presidential impeachment in American history.

Posner is both a natural and an odd choice to write such a book. In contrast to most of the instant experts who populated the television studios last year, Posner is well positioned to offer some much-needed wisdom on the scandal. A longtime member of the faculty at the University of Chicago School of Law, where he is currently is a senior lecturer, he is an extraordinarily prolific scholar and a leader in the law and economics movement that has revolutionized the law schools and public policy. Not only has he been a well-known advocate of a pragmatic approach to constitutional interpretation and law, but his many books include Sex and Reason. Posner is also the chief judge of the U.S. Court of Appeals for the 7th Circuit. He has kept more than a hand in the theoretical debates of legal academia since Ronald Reagan appointed him to the bench in 1981.

To be sure, public commentary on such a highly politicized and recent event as the Clinton impeachment poses some awkwardness for a sitting federal judge. Posner recognizes the ethical concerns, but he argues that the impeachment will not produce any litigation that he might hear in his judicial capacity and that the criticisms of the president have been sufficiently bipartisan to allow a judge to comment on the case without seeming overly political.

Then, too, the ways in which participants in and commentators on the impeachment inquiry misrepresented legal reasoning and the criminal justice process may impose a special obligation on a judge to speak out on this topic. A senior and respected judge has a responsibility to reaffirm basic legal principles in the aftermath of such a legal farce. We are better off for his contribution to the public dialogue.

If Posner pulled any punches in deference to his judicial position, his blows are still plenty sharp. Undoubtedly, his harshest criticism is directed at the president. Posner finds Clinton's actions in the Lewinsky affair generally troubling. But the most important contribution of the book is its careful assessment of Clinton's legal culpability as a result of his efforts to cover up the affair, and in particular to hide it from Paula Jones' attorneys and Kenneth Starr's grand jury. Posner patiently wades through what is incontestably known and what can be reasonably inferred about Clinton's actions and compares these facts to his...