Scientists and engineers learn quickly that propositions must be tested at the boundaries, that generalizations can go ruinously haywire when circumstances approach the edge of the normal range. Lawyers, maybe not so much; some seem to think that’s a good place to sow confusion. Consider, for instance, the argument that Alan Dershowitz intends to make before the Senate — and which Republican Senators, a great many of whom are lawyers, are tending increasingly to rally around: Only statutory crimes are impeachable.
Honestly, the argument is so nuts on its face that I wonder how Dershowitz or anybody else is able to defend it without bursting into laughter.
To see why this is so, imagine the following scenario at the boundary of plausibility and imagination. Duncan Smith is elected president, and his victory in uncontested. Immediately, Duncan begins daily tutorials in preparation for assuming office. He is drilled on the theological differences amongst Muslims, on energy policy, on the science undergirding climate change, on the etiquette of greeting royals throughout the world, on trends in the arts, on community organizers he should meet and activists with whom he should never shake hands. Day, after day, after day, he receives instruction in the nuances of policy, in the theater of leadership; it is not what he expected. One day he realizes, in fact, that he hasn’t any interest whatever in being president, that he doesn’t want the responsibility, that he sought the office only because all the people around him said he could win.
So Duncan goes through the ceremonial rigamarole of inauguration — and then draws his paycheck while refusing to fulfill the responsibilities of office. He sets foot in the Oval Office only once, and then just to take a few photographs for his Facebook page. He refuses to move into the White House. He makes no cabinet appointments, never meets a general, is at home tinkering with his day-trading account the day a couple of neo-Nazis shoot-up a Jewish retirement center and learns about it from the 6:00 o’clock news. He never meets a foreign head-of-state, never shakes hands with a mayor or governor, never says ‘hello’ to a cub scout pack, never discusses bills with the Congressional leaders of his party.
Effectively, the presidency is vacant.
Duncan has committed no crime — but does anybody, anywhere, doubt that Congress can and should remove him from office? Does anybody, anywhere, seriously think that the absence of a statutory crime is a ‘loophole’ that can protect Duncan from impeachment for gross dereliction of his responsibilities?
The Founders could not reasonably have been expected to anticipate all the future misbehaviors of presidents, and the president does not have to commit a specified crime to be removed from office. It is sufficient that a majority of the House, and two-thirds of the Senate, in consultation with their constituents, are satisfied that the conduct of the President endangers the country — and that’s a high enough bar without layering-on the self-interested pettifogging of sycophants.