An Affair of State: The Investigation, Impeachment, and Trial of President Clinton

By Richard A. Posner | Go to book overview

CHAPTER 7 Lessons for the Future

The year-long politico-legal struggle that welled out of President Clinton's affair with Monica Lewinsky is a potentially rich source of insights about the present and lessons for the future. Some I have mentioned already, such as the change that the crisis has revealed in Americans' conception of political leadership and in the forms of political combat, and the need of both houses of Congress for sensible and detailed rules to govern impeachment proceedings. I focus in this chapter on two other points, which turn out to be related to each other. One is the inadequacy of certain kinds of professional thinking to deal with novel issues of social policy--indeed with novelty, period. The other is the unpredictability of struggle--of war above all but in this case of a political struggle isomorphic with war.


The Failure of Legal Reasoning

Three kinds of professional thinking or practice have been shown up as failures. One is the kind of narrowly "legalistic" reasoning that the current Supreme Court employs in deciding even politically momentous cases. The pertinent examples are the two cases--Morrison v. Olson,1 upholding the independent counsel law, and Clinton v. Jones,2 allowing Paula Jones's suit against Clinton to go ahead while Clinton was still in office--that enabled Clinton's affair with Lewinsky to mushroom

____________________
1
487 U.S. 654 ( 1988).
2
117 S. Ct. 1636 ( 1997).

-217-

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