Harvard constitutional law scholar Alan Dershowitz said that impeaching President Trump would not lead to a Senate trial but would serve as a “loaded weapon” for both parties to use in the future.
“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 said during an appearance on Fox News’s Sunday Morning Futures. “But the case cannot come to 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.”
Dershowitz said he doesn’t believe the impeachment trial can continue after Trump leaves office, noting that “the Constitution specifically says the president shall be removed from office upon impeachment.” Because the Constitution makes no mention of the “former president,” Dershowitz argued that the Senate’s “jurisdiction is limited to a sitting president.”
The scholar also warned against the House voting on impeachment, saying that Brandenburg v. Ohio, a landmark 1969 Supreme Court decision, constitutionally protected Trump’s speech. It is not protected if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Dershowitz said that he personally disagrees with Trump’s actions leading up to the Capitol siege, but said that “it comes within core political speech, and to impeach a president for exercising his First Amendment rights would be so dangerous to the Constitution.”
“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.”
