Renowned attorney Alan Dershowitz said this week that Democratic House Speaker Nancy Pelosi’s decision to delay the Senate trial could run afoul the Constitution.
In an article published in Newsmax, Dershowitz rebutted an idea raised by his Harvard Law colleague Laurence Tribe who has argued that Pelosi is within her right to withhold the articles of impeachment against President Donald Trump from the Senate to gain leverage in negotiations.
“[Tribe] would withhold the trial until the Senate agreed to change its rules, or presumably until a new election put many more Democrats in the Senate. Under his proposal, there might never be a Senate trial, but the impeachment would stand as a final and permanent condemnation of President Trump,” Dershowitz wrote.
“It is difficult to imagine anything more unconstitutional, more violative of the intention of the Framers, more of a denial of basic due process and civil liberties, more unfair to the president and more likely to increase the current divisiveness among the American people. Put bluntly, it is hard to imagine a worse idea put forward by good people,” he added.
It’s unclear when Pelosi will proceed
Dershowitz, who publicly defended Trump during the Russia investigation, also said it would be “Guilt by Association” to deny Trump the opportunity to be acquitted in the Senate.
“President Trump would stand accused of two articles of impeachment without having an opportunity to be acquitted by the institution selected by the Framers to try all cases of impeachment,” Dershowitz said. “It would be as if a prosecutor deliberately decided to indict a criminal defendant but not to put him on trial.”
As Fox News reported, it remains unclear when Pelosi will send the articles of impeachment to the Senate. However, she and Tribe, who is advising Democrats, have indicated that Senate Republicans would need to stop cooperating with the White House.
“Let me tell you what I don’t consider a fair trial,” Pelosi told reporters on Wednesday. “This is what I don’t consider a fair trial — that Leader McConnell has stated that he’s not an impartial juror, that he’s going to take his cues, in quotes, from the White House, and he is working in total coordination with the White House counsel’s office.”
Tribe has also stated it would be unconstitutional for the Senate to compel Pelosi to immediately send them the articles of impeachment. “Senate rules requiring the House to ‘immediately’ present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules,” Tribe tweeted on Wednesday.
In his rebuttal to Tribe, Dershowitz wrote that Republicans are within their right to set their own rules, especially since the impeachment process contains both political and judicial elements.
“[Tribe] should not be surprised that the Democratic dominated House pre-judged Trump’s guilt, while the Republican house may have pre-judged his innocence,” Dershowitz said. “That is the nature of the system and should be addressed as a whole not by accepting the partisan nature of an impeachment, while rejecting the partisan nature of a trial.”
Dershowitz concluded that to deny Trump the “fundamental right” of a speedy trial “might serve the temporary interests of the Democratic Party, and academics who support it, but would do violence to the rule of constitutional law that is supposed to serve all Americans, regardless of party or ideology.”