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Putting Sexual Liberation First

To Clinton's defenders, something more important than the rule of law was at stake

Oct 25, 1999, Vol. 5, No. 06 • By DAVID FRUM
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IF An Affair of State, Judge Richard Posner's new book about the impeachment of Bill Clinton, is indeed as definitive as its admirers insist, my place in history is secure: While the book's index offers only three references to Trent Lott and four to Henry Hyde, it has six to me! (True, Hillary Clinton edges me out with eight, but, I feel compelled to note, four of hers are footnotes.) And all of this thanks to a single sentence published in this magazine in February 1998. Here it is, as edited by Posner. "For David Frum, moralistic conservative, 'what's at stake in the Lewinsky scandal . . . [is] the central dogma of the baby boomers: the belief that sex, so long as it's consensual, ought never to be subject to moral scrutiny at all.'"

According to Posner, the thinking exemplified by my sentence explains how Bill Clinton managed to survive the scandal, and even why he might fairly be thought to have deserved to survive: "If the core of the opposition to Clinton is not that he is a liar or even a criminal (for the Right displayed little indignation over the crimes committed by the participants in the Iran-Contra affair), but that his personal conduct and attitudes are revolting, then the claim of his defenders to be warding off a puritan assault on sexual liberty cannot be dismissed as sheer demagoguery."

The judge wants it to be understood that he himself should not be counted among Clinton's defenders. The bulk of his book is devoted to exposing and scourging the deceitfulness of the case for the president in each and every particular, from its bogus claims of executive privilege at the beginning of the scandal to the two-faced arguments in the Senate trial at its end (see David Tell's review in the September 20 WEEKLY STANDARD). Posner concludes that the president obstructed justice and reckons that a private citizen guilty of offenses comparable to Clinton's would face a prison sentence of between 30 and 37 months.

He goes further still. Posner agrees with the House impeachment managers that Clinton's lying subverted the rule of law. "The president's illegalities constituted a kind of guerrilla warfare against the third branch of the federal government, the federal court system, which had rejected his argument that he should be entitled to immunity from civil suits until the end of his term."

He agrees with William Bennett (whom he criticizes at some length) that Clinton's actions disgraced the American system of government. "Presidents have been called 'the high priests of the American civil religion.' President Clinton may be said without hyperbole to have defiled the Oval Office by his antics. Clinton's disrespect for the decorum of the Presidency, especially when combined with the disrespect for law that he showed in repeatedly flouting it and with his barefaced public lies, constitutes a powerful affront to fundamental and deeply cherished symbols and usages of American government, an affront perhaps unprecedented in the history of the Presidency. Imagine a President who urinated on the front porch of the White House or burned the American flag; these acts could be thought metaphors for what Clinton did."

Posner even follows Robert Bork in regarding Clinton's lies as an assault on the fundamental principles of constitutional self-government. By persisting in his lies even after they had been exploded, and by mobilizing his supporters to express their faith in those lies, Clinton "reminded one of how tyrants exhibit their power by forcing their subjects to express agreement with lies that no one believes, such as that the tyrant is benign and the nation a democracy."

Nevertheless, and despite all that, Posner isn't really sorry that Clinton beat the rap. For as important as constitutional self-government may be, it turns out to be not quite as important as beating back the ever-present threat of sexual puritanism.

Richard Posner is of course far from the first commenter on the Lewinsky scandal to frame the argument in these terms. Shortly before the 1998 congressional elections, Andrew Sullivan published a much-quoted article in the New York Times Magazine that asserted the same point even more emphatically. Sullivan discerned in the anti-Clinton camp a new and ominous form of conservatism, one "only nominally skeptical of government power. It is inherently pessimistic -- a return to older conservative themes of cultural decline, moralism and the need for greater social control. . . . A mixture of big-government conservatism and old-fashioned puritanism, this new orthodoxy was waiting to explode on the political scene when Monica Lewinsky lighted the fuse." And as Exhibit A for the existence of this new conservatism, Sullivan cited . . . my sentence!