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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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