Constitutional law scholar Alan Dershowitz, who represented President Donald Trump during Trump’s first impeachment, told Fox News on Sunday that any effort to impeach Trump will not go to trial in the Senate.
“I have got to get your thoughts on this 25th Amendment or this impeachment. House Democrats have drafted articles of impeachment they will introduce on Monday if the president doesn’t resign,” host Maria Bartiromo said. “Tell me your reaction to this. Will you defend this in court if it goes to trial?”
“It will not go to trial,” Dershowitz responded. “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. 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 1:00 p.m. on January 20, an hour after President Trump leaves office. And the Constitution specifically says, the president shall be removed from office upon impeachment, et cetera.”
“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. The jurisdiction is limited to a sitting president. And so there won’t be a trial,” he continued. “But what I worry about deeply is the impact of impeachment on the First Amendment. For 100 years, the Supreme Court and other courts have struggled to develop a jurisprudence which distinguishes between advocacy and incitement.”
“And in the leading case of Brandenburg v. Ohio, a unanimous decision, the Supreme Court basically said that what President Trump said on Wednesday, as much as I disapprove of it and many people disapprove of it on its merits, is protected by the First Amendment to the Constitution,” he added. “It comes within core political speech. And to impeach a president for having exercised 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. And that’s not what impeachment or the 25th Amendment were intended to be.”
Dershowitz said that Democrats were “ridiculous” for demanding that senators such as Josh Hawley (R-MO) and Ted Cruz (R-TX) resign for raising objections to certifying the Electoral College results.
“Well, 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,” Dershowitz said. “Let us not let an incident, that terrible incident that occurred on Wednesday, destroy the Constitution of the United States. That is my goal, to protect the Constitution from overzealous advocates who want to weaponize it in the interests of temporary political gain.”