Dershowitz: Senate Doesn't Have to Wait While Pelosi Plays Games and Sits on Articles

Alan Dershowitz, a professor at Harvard Law School poses for a picture at a hotel in Kiev, Ukraine, Monday, April 11, 2011. Dershowitz intends to use his evidence-busting skills to defend a former Ukrainian president Leonid Kuchma, accused in the murder of an investigative journalist more than 10 years ago. (AP Photo/Sergei Chuzavkov)

Alan Dershowitz, a professor at Harvard Law School poses for a picture at a hotel in Kiev, Ukraine, Monday, April 11, 2011. Dershowitz intends to use his evidence-busting skills to defend a former Ukrainian president Leonid Kuchma, accused in the murder of an investigative journalist more than 10 years ago. (AP Photo/Sergei Chuzavkov)

 

In the wake of the impeachment vote by the House, there have been a lot of people weighing in on House Speaker Nancy Pelosi’s decision to sit on the articles and what that means from here.

We reported how a Democratic witness during the impeachment hearings, Harvard professor Noah Feldman opined that because Pelosi hadn’t yet passed on the articles, President Donald Trump is not yet officially impeached.

Another professor, Bradley Blakeman, argued the Senate had a lot of options, including not holding a trial or moving for dismissal or adjournment.

But one who has the constitutional bona fides to weigh in, Harvard Law professor emeritus, Alan Dershowitz, is saying the Senate doesn’t necessarily have to wait while Pelosi plays manipulative games.

According to Dershowitz:

I believe that the Senate need not wait for articles of impeachment to be transmitted. Senators are empowered by the constitution to begin a trial now — with or without further action by the House. Just as the House has the “sole power of impeachment,” so too the Senate has the “sole power to try all impeachments.”

The current Senate rules from 1986 say that the Senate will act immediately to set a trial date once they are presented with the articles of impeachment.

But Dershowitz notes, that’s not in the Constitution and can change as the Senate decides. “The Senate can make its own rules (as long as they are consistent with the Constitution) and establish its own timetables.”

He saw fault in the opinions of both Laurence Tribe and Noah Feldman, both relied upon by the Democrats.

Tribe argues that the Democrats impeached Trump and that they can sit on the articles, denying Trump the opportunity of acquittal. It has been reported that Pelosi may have taken his opinion in deciding to sit on the articles.

Feldman said he doesn’t believe that Trump is officially impeached until the articles are passed to the Senate and he believes if Pelosi sits on the articles past a short reasonable delay that the would not be in accordance with the Constitution and she would be denying Trump his right to a trial.

While Dershowitz did agree that Trump was impeached, he said Tribe was more off because of his bias and he said that Pelosi’s actions were unconstitutional.

Sorry, but the Constitution does not permit that partisan, result-oriented ploy. Either Trump has been impeached and is entitled to a Senate trial; or he has not been impeached and is entitled to a clean slate.

My own view is that in the public eye, President Trump has been impeached by a partisan vote and he is now entitled to be acquitted, even if the Senate vote is as partisan as the House vote. The partisans who voted his impeachment along party lines in the House, have no principled argument against a party-line acquittal. The Democrats devised the partisan rules of engagement in the House. They can’t suddenly demand a change in those rules because they are a minority in the Senate.

So there are only two constitutionally viable alternatives: either Pelosi must announce that Trump has not been impeached; or the Senate must initiate a trial. Preserving the status quo indefinitely — Trump remaining impeached without having a trial —is unconstitutional and should not be tolerated by the American people.

Basically, if she doesn’t move and wants to hang the process, move without her, since the Senate has complete control of the trial. Then you could have a trial and immediately move to dismiss or call what witnesses you choose.

Dershowitz also wrote in May that the President could have a resolution to the Supreme Court if he were impeached without the Congress having evidence of “high crimes and misdemeanors,” a situation one might argue we are at right now.

It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors. Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.