The Perils of Presidential Impeachment
Review of: An Affair of State: The Investigation, Impeachment,
and Trial of President Clinton
by Richard A. Posner
Michael J. Gerhardt
67 U Chi L Rev 293 (2000)
In this Review, Professor Michael Gerhardt of William & Mary Law
School, a nationally respected impeachment scholar, examines Chief Judge
Richard Posner's provocative new book, An Affair of State: The Investigation,
Impeachment, and Trial of President Clinton. Professor Gerhardt commends
the book for illuminating several commonly overlooked aspects of the
impeachment process, including the basic vagueness of the constitutional
standard for impeachment and consequent difficulties that this vagueness
poses for principled decisionmaking in an impeachment trial. Professor
Gerhardt finds, however, inadequate support for Judge Posner's dismal
assessments of the performances of every major institution involved
in the Clinton impeachment proceedings -- the Supreme Court, Independent
Counsel, legal profession, Congress, and the presidency. Professor Gerhardt
suggests that this shortcoming undermines Posner's claim that his preferred
mode for resolving legal and social dilemmas -- balancing competing
considerations -- is immune to the problems that undermine "soft"
subjects (such as history and law) that he derides for not being fields
in which "agreement on the methods for resolving disagreement enables
consensus to be forged despite the differing political agendas of the
practitioners." Professor Gerhardt concludes that Judge Posner's
balancing is as "permeable to political disagreement" and
manipulation as any alternatives.
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