Harvard University emeritus constitutional law professor Alan Dershowitz, 82, wrote in the Wall Street Journal that a second impeachment trail after 74-year-old former President Donald Trumo left office was unconstitutional. Dershowitz represented Trump in his first impeachment trial charging Trump with (1) abuse of power and (2) obstruction of Congress, both articles were defeated Feb. 5, 2020. Both articles were so vague, so poorly written, so recklessly concocted by House Speaker Nancy Pelosi (D-Calif.) that they were easily defeated by Republican senators. Once the Capitol Hill riot took place Jan. 6, Pelosi was so rattled, so frightened, so unnerved she blamed Trump in her latest impeachment article for “incitement of insurrection.” Any first year laws student could defend Trump against such a spurious charge, considering he didn’t order, instruct or approve of his Jan. 6 audience breaking the law.
Dershowitz, who could represent Trump in a second impeachment trial, said the Senate should reject Pelosi’s latest impeachment article because Trump is not longer president and can therefore not, according to the House’s Article 1 impeachment authority, remove him from office. Unlike criminal trials where the burden of proof must be “beyond a reasonable doubt,” the burden for an impeachment is actually quite low. Dershowitz told the Wall Street Journal that impeaching Trump when he’s no longer in office violates the House’s Article 1 power, since the punishment is removal from office. Pelosi and her Democrat caucus aren’t interested in following the Constitution, they’re interested in taking revenge on Trump for whatever role he played in the Jan. 6 Capitol riot and mob scene. Dershowitz thinks a Senate trial is unconstitutional with Trump already out of office.
If Democrats wanted to get back at Trump they should have asked Capitol or D.C. police to charge Trump with “inciting a riot.” Whether the criminal charges stuck or not, Democrats had an opportunity to use the criminal justice system to charge Trump with a legitimate crime. Charging Trump with “inciting an insurrection” sounds dramatic but the evidence does not support it. Reviewing video of Trump’s Jan. 6 speech shows that he didn’t ask his one million-strong audience to storm the Capitol, damage government property or break the law. While Trump complained about a “rigged” election, he never asked anyone to break the law. “For the victorious Democrats to seek revenge against Donald Trump would set a terrible precedent, distract from President Biden’s agenda, and make it hard to heal the country. Better to move on,” Dershowitz wrote in the Wall Street Journal.
Dershowitz said there’s no language in the Constitution under the House’s Article 1 impeachment authority that gives them the authority to impeach a president or conduct a trial once a president leaves office. Biden has been agnostic of whether the Senate should go ahead with an impeachment trial on his predecessor. Despite saying Trump incited the Jan. 6 crowd, 78-year-old former Senate Majority Leader Mitch McConnell (R-Ky.) finds himself quibbling with newly minted Sen. Majority Leader Chuck Schumer (D-N.Y.) over preserving the filibuster. McConnell’s in no mood to set a date for an impeachment trial when Senate leadership must be revamped on all committees. Democrats and their friends in the media have accused Trump of “incitement of insurrection,” without probable cause. Trump had no control of lawbreakers from his crowd that stormed the Capitol Jan. 6.
If Desrshowitz represents Trump, he’ll give a full-throated defense that will eviscerate the angry lynch mob in Congress looking for blood. No matter how Democrats and the press twist Trump’s words, the facts are the facts, that he never asked or instructed anyone to break the law. No Democrat lawmakers were held responsible for the violence that swept the country over the summer, including seizing blocks of civic territory in Portland and Seattle, looting, arson and anarchy, yet only Trump gets held responsible to the unlawful actions of a tiny fraction of his one million member audience. Dershowitz won’t let lawmakers get away to abusing their Article 1 impeachment authority for revenge. Impeaching Trump twice, it’s clear that Pelosi has abused her Artlce 1 authority, letting her passions get in the way of sound judgment, something bound to come up at a Senate trial.
When you look at how the angry Jan. 6 Capitol mob has morphed House and Senate Democrats to take revenge against Trump, Dershowitz has tried to introduce some logic into an otherwise irrational process. No matter how much Pelosi and her band of Trump-hating Democrats want to butcher Trump, they must follow the law. No where in the House’s Article 1 impeachment authority does it say they can impeach a president after he leaves office. Biden’s inaugural speech was all out unity and moving forward, promising to represent all the people, including ones that didn’t vote for him. With all the high priorities battling the Covid-19 crisis and sick economy, hosting another impeachment trial can’t be on his priority list. Schumer already said publicly that the reason to convict Trump is to prevent him from running for public office again, not because he committed high-crimes-and-misdemeanors.
