H-NET BOOK REVIEW
Published by H-Law@msu.edu (May, 2000).

Jeffrey Toobin, _A Vast Conspiracy: The Real Story of the Sex Scandal
That Nearly Brought Down a President_.  New York: Random House, 1999.
422 pp.  Index.  ISBN 0-375-50295-5, $25.95 (hardcover).

Richard A. Posner, _An Affair of State: The Investigation, Impeachment,
and Trial of President Clinton_.  Cambridge, Mass.: Harvard University
Press, 1999.  xii + 276 pp.  Dramatis Personae, Chronology, Index.
ISBN 0-674-000080-3, $25.00 (hardcover).

Reviewed by R. B. Bernstein <rbernstein@nyls.edu>, New York Law School.


PARTISANSHIP 2, HISTORY 0.

More than a year after the fact, the impeachment and trial of President
Bill Clinton has receded into the past, like a half-remembered
nightmare, with no larger significance other than the besmirching of
Clinton's likely historical reputation.

While it was unfolding, journalists and politicians attempted to build
analogies between the Clinton impeachment to the Watergate crisis of
1972-1974, seeking to plug each of the dramatis personae into the
corresponding role of a quarter-century before.  These mechanistic
analyses collapsed.  In the Clinton controversies, unlike Watergate,
there were no clear dividing lines between heroes and villains, good
guys and bad guys.  Moreover, unlike Watergate, in which nearly every
participant articulated a clear sense of the constitutional gravity of
the crisis afflicting the nation and the administration of President
Richard Nixon, the constitutional arguments generated by the Clinton
impeachment (the first impeachment of an elected President) were
side-shows to the tawdry spectacle at the impeachment's core.  In sum,
the Clinton impeachment was a constitutional train-wreck, a fiasco
mismanaged by virtually all involved.  Whoever won, the Constitution
and the nation lost.

One parallel to Watergate holds firm -- the steady stream of books
claiming to illuminate one or another aspect of the history that we
have just endured.  The two books under review, generally hailed as
among the best of the genre, offer nearly polar perspectives on the
Clinton scandals and the constitutional system's fumbling responses to
them.  Sadly, they also justify Sir Walter Raleigh's warning that no
historian should follow history too closely lest it kick out his teeth.

_A Vast Conspiracy_ proposes to recount an excellent journalistic
history of the Clinton sex scandals and their political significance.
And, indeed, there is much of value in these pages.  Jeffrey Toobin, a
veteran prosecutor and legal journalist, lambastes virtually everyone
involved in the case -- including Clinton himself -- because virtually
everyone deserves lambasting.  Especially as lawyers played central
roles in virtually every stage of the story, Toobin's analysis of the
conduct of the lawyers rings true.  In particular, his autopsies of the
struggles of Independent Counsel Kenneth Starr and his staff are
devastating.  Toobin demonstrates that Starr, inexperienced in the
world of federal prosecutions, largely left key decision-making to his
staff; whereas in the early stages of his stewardship his key staffers
were skilled, veteran prosecutors, by the time Linda Tripp and then
Monica Lewinsky appeared on the horizon Starr was relying on third- and
fourth-string attorneys united only by their moral zeal and their
hatred for Clinton and his administration. The only person who emerges
as an honorable figure is Judge Susan Webber Wright, the federal
district judge who presided over Paula Corbin Jones's sexual-harassment
lawsuit and sought desperately and courageously to keep the case
against Clinton on at least a partly dignified level.

Toobin's reconstruction of the case's evolution is admirably clear.  He
shows that the history of the Clinton impeachment was shot through with
contingencies -- foolish choices, bad judgment calls, decision-making
warped by vindictive zeal on one side and defensive rage on the other
side.  In many ways, this book is reminiscent of two classic
journalistic histories of scandals in the entertainment industry:
Steven Bach's _Final Cut: Dreams and Disaster in the Making of
"Heaven's Gate"_ and David McClintick's _Indecent Exposure_.

Toobin's book is wanting in several key respects, however -- each of
which points up a corresponding superficiality in the underlying story
he tells.

First, Toobin fails to consider one key dimension of the Clinton
impeachment -- its betrayal, on both sides, of the seriousness of any
invocation of the Constitution's impeachment process, particularly
against an elected President.  Most of the best histories of Watergate
assess the nature of impeachment, the meaning of "high crimes and
misdemeanors," and the significance of impeachment in constitutional
government.[1]  Toobin refers to these matters only in passing, thus
reflecting and reinforcing the ways in which the Clinton impeachment
scanted such vital questions.  (Readers will search in vain for any
discussion in _A Vast Conspiracy_ of the afternoon in December 1998
when many leading constitutional scholars historians were called before
the House Judiciary Committee, only to be spurned.)

The pivotal flaw in Toobin's book, however, is in his thesis.  His
riveting account of the coincidences, accidents of timing, and
ramshackle connections among various members of the pro-impeachment
forces impeaches (if I may use that word) most uses at the time of the
phrase "vast conspiracy."  It was more an ad hoc, jury-rigged series of
opportunistic alliances than a conspiracy.

A word of clarification is required, however.  By "vast conspiracy"
Toobin invokes not the "vast right-wing conspiracy" against Clinton
postulated by Hillary Rodham Clinton, but rather what Toobin repeatedly
speaks of as "the legal system's takeover of the political system."
Toobin seems to believe that law and politics are and should be
distinct realms, hermetically sealed off one from the other; beginning
in the 1950s, he contends, the use of litigation to achieve such great
social and political goods as desegregation and voting rights led in
turn to the legal system's takeover of the political system -- with the
Clinton impeachment as the final damning evidence of this terrible
wrong turning.

Oddly, however, Toobin's account repeatedly suggests that the reverse
has been true -- that the bitterness of social and political conflict
pervading the political system has seeped into and taken over the legal
system, not vice versa.  Toobin's own account so convincingly supports
the mirror image of his chosen interpretative perspective that he
leaves this reader, at least, unclear why he has adopted his stated
viewpoint.  Perhaps Toobin has adopted the fashionable posture of 1990s
critiques of encroachments of law into realms for which it is
supposedly unsuited.

Moreover, Toobin's linking of the trainwreck of the Clinton impeachment
to the legal system's postulated takeover of the political system begs
the gigantic question of how the great goods achieved through legal
means, such as desegregation, could have been achieved other than
through constitutional litigation.  Yet again, here as in other aspects
of his analysis, Toobin's choice to focus his analysis on the events of
1998-1999 denies him and his readers the broader historical perspective
that would have elevated this book above an inflated magazine article.

By contrast, _An Affair of State_ claims to be a carefully-prepared and
rigorously-argued analysis of the Clinton-Lewinsky affair from a
responsible jurisprudential perspective.  This study is a notable
change of pace for its author, Chief Judge Richard A. Posner of the
United States Court of Appeals for the Seventh Circuit, perhaps the
most prolific writer ever to work in the field of jurisprudence and
legal philosophy.  Judge Posner's introduction startles the reader with
his characterizations of the Clinton impeachment as "exhilirating" and
"riveting," but a closer reading of his book suggests why he is so
entranced by the tawdry spectacle and why, furthermore, he has ventured
into the realm of what some might dismiss as "instant history" (he
tells us that he finished writing the book four days after the Senate
voted not to convict President Clinton).  Judge Posner's purpose in _An
Affair of State_ is to use the Clinton episode as a case study to test
(and vindicate) his approach to jurisprudence and legal thought, which
some would describe by the older label "law and economics" but which he
refers to as "legal pragmatism."

I leave it to other reviewers to assess Judge Posner's purely legal
analyses; a cogent response by Professor Ronald Dworkin of New York
University School of Law suggests that Judge Posner's examination of
the crime of perjury, and his assessment of the conduct and work of
Kenneth Starr are both severely flawed.[2]  So, too, does Toobin's
book.  Indeed, a juxtaposition of the two studies is instructive.  For
example, Posner sees nothing wrong with anything that Starr and his
minions did, whereas Toobin presents a damning indictment of the Starr
prosecutions; one reason may be that Posner never has had prosecutorial
experience, whereas Toobin (a former member of Iran-contra prosecutor
Laurence Walsh's staff) is an experienced federal prosecutor.

What is of interest for constitutional scholars, political scientists,
and historians is the specific target of _An Affair of State_.
Posner's various works of legal scholarship often choose a competing
school of legal thought for contemptuous dismissal.  Here Posner takes
aim at historians and constitutional theorists.

For legal and constitutional historians, Posner's book is of interest
mainly as a challenge.  Posner disputes the ability of historians -- or
of legal scholars whose chosen perspective is that of moral philosophy,
or that of law and literature, or that of just about any other field
besides his chosen form of legal pragmatism -- to render useful or
enlightening advice on any major legal or constitutional issue.

To be sure, historians and constitutional theorists on both sides of
the debate over Clinton's impeachment were guilty of rhetorical
excesses -- in particular, those scholars who in other settings
vigorously had dismissed "original intent" or "original meaning" or
"original understanding" jurisprudence," yet abruptly turned around and
made originalist arguments against the impeachment effort.  So, too,
legal scholars who insisted on rigorous, even rigid originalism in
other fields blithely dismissed any constraints of any identifiable
original intent on the impeachment process.  Some scholars attempted to
voice and explain middle-ground positions that avoided either excess,
but unfortunately they were drowned out by the polarizing effect of the
choice to impeach or not to impeach.

However, the faults and flaws of the scholarly controversy over the
impeachment process do not warrant Posner's dismissal of the scholars
-- nor his overheated rhetoric about the professoriat.  Posner's
contempt for those who think otherwise falls curiously flat when we
watch his attempts to use legal pragmatism to resolve the
constitutional questions of the Clinton impeachment.  Posner
essentially concludes that, although Clinton might have committed
impeachable offenses (a conclusion that he reaches by bootstrapping
arguments about the President's moral authority into a claim that
personal immorality damages the institution of the Presidency), a cold
pragmatic analysis of what would be gained versus what would be lost by
impeaching the President tips the scale against impeachment.  It is
difficult to see how this approach to deciding whether to impeach a
President is an improvement over the carefully reasoned approach
developed in the Watergate crisis of 1973-1974 -- one crystallized by
John Labovitz's observation that impeachment is a lawyer's solution to
a statesman's problem, and that presidential impeachment is necessarily
a blend of constitutional, legal, and political inquiries.[3]

In sum, the last battle of the Clinton impeachment is, in the words of
Jonathan Swift, "the battle of the books."  Few of these books come
before the reader with as many claims to authoritativeness as those now
under review.  The failure of these books to elucidate or illuminate
the nature, sources, and longterm significance of a constitutional
train wreck suggests, yet again, the dangers of writing contemporary
history.

NOTES

[1].  See generally Stanley I. Kutler, _The Wars of Watergate: The Last
Crisis of Richard Nixon_ (New York: Knopf, 1990; new ed., New York:
W.W. Norton, 1992); J. Anthony Lukas, _Nightmare_ (New York: Viking,
1975; reprint ed., Athens: Ohio University Press, 1999).

[2].  Ronald Dworkin, "Philosophy and Monica Lewinsky," _The New York
Review of Books_, March 9, 2000.

[3]  See generally John R. Labovitz, _Presidential Impeachment_ (New
Haven: Yale University Press, 1979).

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Charles Zelden                        Book Review Editor
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Legal Studies Program
Liberal Arts Department
Nova Southeastern University          zelden@nova.edu
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