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Dershowitz: How Should the Senate Deal with an Unconstitutional Impeachment by the House?
How Should the Senate Deal with an Unconstitutional Impeachment by the House?
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These two grounds [of impeachment] — abuse of power and obstruction of congress — are not among the criteria specified for impeachment. Neither one is a high crime and misdemeanor. Neither is mentioned in the constitution. Both are the sort of vague, open-ended criteria rejected by the framers. They were rejected precisely to avoid the situation in which our nation currently finds itself.
So, what options would the senate have if the House voted to impeach on two unconstitutional grounds? Would it be required to conduct a trial based on "void" articles of impeachment? Could it simply refuse to consider unconstitutional articles? Could the president's lawyer make a motion to the Chief Justice — who presides over the trial of an impeached president — to dismiss the articles of impeachment on constitutional grounds?
Regardless of the outcome, the damage will have been done by the House majority that will have abused its power by weaponizing the House's authority over impeachment for partisan purposes — exactly as Hamilton feared.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School, a Distinguished Senior Fellow at Gatestone Institute, and author of The Case Against the Democratic House Impeaching Trump, Skyhorse Publishing, 2019, and Guilt by Accusation, Skyhorse publishing, 2019.
These two grounds [of impeachment] — abuse of power and obstruction of congress — are not among the criteria specified for impeachment. Neither one is a high crime and misdemeanor. Neither is mentioned in the constitution. Both are the sort of vague, open-ended criteria rejected by the framers. They were rejected precisely to avoid the situation in which our nation currently finds itself.
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