Congress ‘Put Itself Above the Law’ in Trump Impeachment: Dershowitz

February 6, 2021 Updated: February 7, 2021

Harvard Law School professor emeritus Alan Dershowitz said Feb. 6 that congressional lawmakers are violating the U.S. Constitution with what he described as a “show trial” against former President Donald Trump.

The House impeachment brief (pdf) alleges that Trump incited a mob to breach the U.S. Capitol on Jan. 6 while lawmakers were convened in a joint session to consider the certification of Electoral College votes.

Trump’s legal team denies the allegation and argues in a memo (pdf) that the trial is unconstitutional because Trump is no longer president. The team also argues that Trump exercised his First Amendment rights in calling into question the results of the election.

Dershowitz argued that an effective legal defense is based on challenging the constitutionality of the allegations against Trump.

“The best arguments he can make, and his lawyers will make, are the constitutional ones, namely the Senate has no jurisdiction over a former president, and the speech was covered by the First Amendment,” Dershowitz told Newsmax in an interview.

“Congress has put itself above the law,” Dershowitz said. “They say the president is not above the law; they’re right, but Congress is not above the law, and the law makes specific provisions for when a president can be impeached, and you can’t impeach a president in violation of the First Amendment.”

Meanwhile, Trump’s lawyers sent a letter to Rep. Jamie Raskin (D-Md.), the House of Representatives’ lead impeachment manager, on Feb. 4, rejecting his attempt to get Trump to testify in the impeachment trial.

“We are in receipt of your latest public relations stunt. As you certainly know, there is no such thing as a negative inference in this unconstitutional proceeding,” attorneys Bruce Castor and David Schoen wrote to Raskin.

“Your letter only confirms what is known to everyone: you cannot prove your allegations against the 45th President of the United States, who is now a private citizen. The use of our Constitution to bring a purported impeachment proceeding is much too serious to play these games.”

President Trump
President Donald Trump speaks to supporters before boarding Air Force One for his last time as president at Joint Base Andrews, Md., on Jan. 20, 2021. (Pete Marovich/Pool/Getty Images)

Dershowitz, in his remarks to Newsmax, said Trump made the right call in refusing to testify.

“The president made the right decision. You don’t walk into a perjury trap when you have people who you know are going to be hostile to you,” Dershowitz said.

He said on Feb. 4 that the House impeachment brief against Trump, which seeks to undermine the former president’s First Amendment-based argument in his defense, amounts to a dangerous broadside against the freedom of speech of all Americans.

Writing in an earlier op-ed for The Hill, Dershowitz made a case against a key argument contained in the impeachment brief, namely that “the First Amendment does not apply at all to impeachment proceedings,” which the legal scholar said signals congressional willingness to take aim at the freedom of speech more broadly.

“The brief filed by the House managers advocating the conviction and disqualification of citizen Donald Trump contains a frontal attack on freedom of speech for all Americans,” Dershowitz wrote.

Trump adviser Jason Miller echoed the sentiment that the reasoning featured in the impeachment brief is a threat to freedom of speech more broadly, writing in a Feb. 4 statement that “not only will President Trump be on trial next week. The First Amendment will be on trial next week because the Democrats aren’t going to stop with attacking President Trump, they want to go after the free speech and the rights of all Americans.”

Democrats face an uphill battle in the Senate in their pursuit of an impeachment conviction against Trump. Forty-five Republican senators voted in favor of a resolution calling the trial unconstitutional, since Trump is now a private citizen. With the Senate split 50–50, the impeachment managers would have to convince 17 Republicans that the trial is constitutional and that Trump is guilty of inciting an insurrection.

Zachary Stieber contributed to this report.

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