House Speaker Nancy Pelosi doesn’t have the power she believes to prevent the Senate’s participation in impeachment proceedings, former Harvard Law School Professor Alan Dershowitz said Thursday.
“Whether the House wants it to be in the Senate or not, the matter is now properly before the Senate,” Dershowitz said in a call with the Republican National Lawyers Association. “The presiding officer of the Senate can set a trial date, convene the chief justice and begin the trial. So I don’t think that Pelosi has the power that she thinks she has, or that my colleague Larry Tribe thinks she has.”
Harvard Law Professor Laurence Tribe has suggested the House withhold the trial until the Senate changes its rules to be more favorable to Democrats, or until another election puts more Democrats in the chamber. “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 wrote in a Dec. 18 tweet. He subsequently deleted the message. (RELATED: TAKALA EXCLUSIVE: Despite Viewership Woes, CNN Retains Stranglehold On 58 Airports)
“I can imagine nothing more unconstitutional than a House impeachment without sending it to the Senate,” Dershowitz said. “It’s just unheard of. The Constitution provides that it is a two-step process, not a one-step process. It doesn’t say the president may be impeached, period, that’s the end of the matter. It says the president may be impeached, and if he’s impeached by the House, the Senate then gets to decide whether he should be removed.
“The idea that a stain would remain on the books, that the president would remain impeached, without an opportunity for the president to get acquitted by the Senate, is plainly unconstitutional,” he added. “It would be as if a prosecutor decided he had insufficient evidence to get a conviction, so he went after an ordinary citizen and said, ‘Look, I’m just going to indict him. Let the public know he’s indicted. For the rest of his life, he will stand indicted. But I have no intention of bringing him to trial. I will deny him his Sixth Amendment right to a speedy trial. I’m going to let the indictment just hang out there.’ Obviously, no judge would tolerate that.”
Dershowitz said the president could seek to have the matter dismissed if it did not proceed to trial, but that it would “probably be a mistake” at this stage. “Could the president now go to the courts and say, ‘Look, while the constitution says the House is the sole judge of impeachment, they have now violated the Constitution’? The president’s legal team could theoretically go before the chief justice and seek to dismiss. (RELATED: Obama Wanted To Know Everything His Trump Spies Were Doing, And It Looks Like He Did)
“The option that will probably be decided on is to make legal arguments, probably no witnesses, probably no experts, and leave it to the Senate whether to acquit or convict. It’s likely, based on the evidence that’s been presented thus far to the House, that there would be a vote of acquittal,” Dershowitz said. “Remember, you need two-thirds to convict. The reason we need two-thirds to convict is the framers did not want a partisan impeachment. They wanted an overwhelming consensus in favor of removing a president.”