Constitutional law scholar Alan Dershowitz warned that Democrats’ efforts to impeach President Donald Trump a second time will provide a “loaded weapon” for the future.
The Harvard Law professor emeritus effectively dismissed the attempt by Democrats to impeach the president over remarks he made during a speech ahead of last week’s violence at the U.S. Capitol. asserting on Fox News that the case would never go to trial in the Senate.
Dershowitz told “Sunday Morning Futures” host Maria Bartiromo that Trump was exercising his First Amendment rights in the speech he made last week, and impeaching him for it will set a precedent dangerous to the U.S. Constitution.
Democrats plan to introduce on Monday one Article of Impeachment against President Trump for “inciting an insurrection,” vowing to move ahead if Vice President Mike Pence doesn’t invoke the 25th Amendment within 24 hours.
(Source: Fox News)
“It will not go to trial. All the Democrats can do is impeach the president in the House of Representatives. For that, all you need is a majority vote. You don’t have to take evidence, there are no lawyers involved,” Dershowitz, who was part of the president’s legal team during the first impeachment, said.
“But the case cannot come for trial in the Senate because the Senate has rules and the rules would not allow the case to come to trial until – according to the majority leader – until 1 p.m. on Jan. 20, one hour after President Trump leaves office,” he added.
“And the Constitution specifically says, ‘The President shall be removed from office upon impeachment.’ It doesn’t say the former president. Congress has no power to impeach or try a private citizen, whether it be a private citizen named Donald Trump or named Barack Obama or anyone else,” Dershowitz asserted. “The jurisdiction is limited to a sitting president and so there won’t be a trial.”
“What I worry about deeply is the impact of impeachment on the First Amendment,” Dershowitz continued, citing the 1969 Supreme Court decision in Brandenburg v. Ohio, and noting that Trump’s speech is constitutionally protected.
The words spoken by the president as he addressed the thousands of supporters gathered to support him “comes within core political speech, and to impeach a president for having exercised his First Amendment rights would be so dangerous to the Constitution,” the law professor told Bartiromo, noting he personally did not approve of the president’s remarks.
“It would lie around like a loaded weapon ready to be used by either party against the other party,” he said, “and that’s not what impeachment or the 25th Amendment were intended to be.”
Bartiromo brought up the calls for lawmakers, like Sens. Ted Cruz of Texas and Josh Hawley of Missouri, to resign for their challenge to the certification of the Electoral College vote last week, but Dershowitz waved away any concern.
“That’s ridiculous because they are covered by the Speech and Debate clause, nothing can happen to them based on what they said on the floor of the Senate. They too engaged in protected speech,” he responded.
“Let us not let a terrible incident that occurred on Wednesday destroy the Constitution of the United States,” Dershowitz concluded. “That is my goal, to protect the Constitution from overzealous advocates who want to weaponize it in the interest of temporary political gain.”
Last week, law professor Jonathan Turley argued that Trump’s speech, which he personally thought was “reckless and wrong,” did “not meet the definition for incitement under the criminal code.”
“The damage caused by the rioters this week was enormous, however, it will pale in comparison to the damage from a new precedent of a snap impeachment for speech protected under the First Amendment,” the George Washington University law professor wrote in an opinion piece published Saturday by The Hill.
“It is the very threat that the framers sought to avoid in crafting the impeachment standard. In a process of deliberative judgment, the reference to a snap impeachment is a contradiction,” Turley wrote. “In this new system, guilt is not doubted and innocence is not deliberated. This would do to the Constitution what the violent rioters did to the Capitol and leave it in tatters.”