The Parade of Horribles

Russian Alaska

Jonathan Chait, Trump Lawyers Argue No President Can Be Impeached for Any Abuse of Power

Chait—not a constitutional scholar, but a hell of a smart guy—weights in on the Dershowitz position versus the Alexander Hamilton/Tribe position.

If the topic interests you, Chait’s piece will repay the reading. Here, I want to draw your attention to one aspect of the argument.

On the one hand, Dershowitz’s highly abstract, and highly erroneous, proposition—that impeachment requires violations of federal criminal statutes—fulfills an important rhetorical purpose: giving those senators who want to acquit Trump an abstract principle on which to hang their hats.

On the other hand, the Dershowitz position is terribly, terribly vulnerable to a bunch of withering hypothetical examples that would demonstrate its irrationality. Lawyers call this “the parade of horribles.”

What I hadn’t known, until I read the Chait post, was that Dershowitz had already demolished his own argument, as shown in the second paragraph of this quote from Chait:

As a constitutional principle, the notion that a president cannot be removed for abusing his power, but can be removed for a criminal violation, however small, would turn impeachment into a ludicrously ill-fitting solution for the problem it was designed to solve. It implies Trump could not be impeached for promising to pardon anybody who murdered his political rivals, but could be impeached if he resold a mattress that was missing its tags.

Dershowitz has demonstrated the absurdity of the principle himself. In a 2018 book arguing against Trump’s impeachment, he suggested that Trump couldn’t be impeached even if he let Russia have Alaska. “Assume [Russian President Vladimir] Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea,” argued the noted legal scholar. “Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory,” Dershowitz wrote. “That would be terrible, but would it be impeachable? Not under the text of the Constitution.”

Trump’s lawyers are unlikely to emphasize this hypothetical scenario in their presentation to Congress. But it illustrates the size of the wormhole their theory would open up. The U.S. criminal code is designed primarily for ordinary citizens, not for presidents. It does not contemplate every way a corrupt, mentally unfit, or authoritarian chief executive could twist the powers at his disposal.

But isn’t this all too abstract for ordinary people to grasp? Maybe it will prove a little challenging for those unusued to analytical reasoning. But it’s not rocket science, my friends. Just give it a little effort and I’ll bet you can come up with fifty more examples like the promise to pardon murderers and the Alaska regifting. Once you get to about number 12 in the parade of horribles, someone trying to defend the Dershowitz position is going to look like the world’s biggest fool.