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Martin 9/12 Calendar

Wednesday, December 11, 2019

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 TrumpSkyhorse Publishing, 2019, and Guilt by Accusation, Skyhorse publishing, 2019.

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