Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis by Alan M. Dershowitz (review)

Book Reviews 143 Book Reviews Alan M. Dershowitz. Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis. New York: Basic Books, 1998. Pp. x + 275. Marx pointed out, with a healthy dose of irony, that "the criminal augments the market by producing the professor of criminology, who produces the commodity, the textbook of criminology" (Theories of Surplus Value, Vol.1, Lawrence and Wishart, 1969, 387). So likewise, attempts to impeach the president of the United States have been a boon to the media in general and to American law professors in particular. Alan Dershowitz of the Harvard Law School is one of the media's favourite law professors; he achieved perhaps wider public notice than any law professor during the course of the O.J. Simpson trial. Now Dershowitz has contributed to the flood of material on the tortured history of the controversies that have surrounded Bill Clinton's presidency. Aside from a substantial introductory chapter, his book is made up of occasional short pieces covering the period 1994 to 1998 (written, it would seem, for use as class materials). They reveal Dershowitz, a committed Democratic and Clinton supporter, moving from a professorial detachment defending the rule of law to a passionate denouncer of the Starr-Republican indictment juggernaut. The pieces gathered together trace the labyrinthine interconnections that stretch from the collapse of the Madison Guaranty savings and loans bank in 1989 that led into the Whitewater investigations that then became caught up with allegations by Paula Jones of sexual harassment by Clinton while Governor of Arkansas, which in turn led to the evidence given by Monica Lewinsky that was to culminate in the impeachment procedure. One decidedly irritating feature of Dershowitz's treatment is his tendency to blame the Clinton lawyers for screwing up and suggesting that if only 144 Canadian Review of American Studies Revue canadienne d etudesamericaines Clinton had followed Dershowitz's advice all would have been well or at least less damaging. On the positive side, Dershowitz underlines two very important features of the American politicojudicial system that are frequently forgotten by Canadians. He reminds us that the United States is not a parliamentary system. While parliamentary majorities can and do eject prime ministers, under the U.S. Constitution it is the people that directly elect the president and, as we know, the president often wears different political colours from the congressional majority. Yet the Republicans have sought to use their congressional majority to overturn the popular mandate of the incumbent president. Second, Dershowitz draws attention to one of the most glaring defects of the U.S. Constitution; namely, that in the separation of the executive and legislative functions no provision was made for an autonomous prosecutorial mechanism. These functions are variously divided; at the federal level, they are within the executive itself and at the local level district attorneys are generally subject to some form of direct election. Hence the often highly politicised nature of prosecutorial decisions. At the federal level, this deficiency is glaring since the attorney-general cannot be an impartial investigator of allegations against the president; the result has been the political and constitutional nightmare of the 'independent counsel.' Dershowitz looks at the twists and turns that led to the appointment of Kenneth Starr, who it should be remembered replaced the much less controversial Robert Fiske through the machinations of a strongly Republican bench of the U.S. Court of Appeals. Dershowitz latches on to this to provide an overly psychologistic interpretation of the events leading up to impeachment . He explains the dynamics of the process in terms of the conflict between Clinton and Starr as a story of a battle between two men who are obsessed by forbidden sex-Clinton with engaging in it and Starr about exposing it. This personalised battle over sex provides Dershowitz with his book's title and its major theme, namely, 'sexual McCarthyism.' While at first glance this has a certain plausibility it is, I will suggest, unsatisfactory. His point is that in the 1950s Senator McCarthy and FBI-chief J.Edgar Hoover used investigations of the sex lives of potential witnesses who were threatened with exposure unless they admitted links with the Communist Party or...