Former Harvard Law School Professor Alan Dershowitz responded to House Speaker Nancy Pelosi (D-Calif.) possibly withholding articles of impeachment from the Senate and argued that she doesn’t have the power she thinks she has.
“Whether the House wants it to be in the Senate or not, the matter is now properly before the Senate,” Dershowitz told the Republican National Lawyers Association, according to the Daily Caller. “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 this week suggested that House Democrats withhold the trial until the Senate comes up with rules.
“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 Twitter before it was deleted.
Dershowitz said such a move would be against the Constitution.
“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 longtime law professor and media pundit likened such a move to a criminal case in court.
“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,” he argued.
Meanwhile, it’s not exactly clear what Pelosi’s plans are.
When she was questioned about the move on Thursday, she wouldn’t commit to sending them until the Senate provides rules.
“When we see what they have, we’ll know who and how many to send over,” Pelosi told reporters. “The next thing for us … is when we see the process set forth in the Senate. We will have the monitors set forth and who we will choose.”
President Donald Trump was impeached in a partisan vote on Wednesday for abuse of power and obstruction of Congress, which he has denied.
House Majority Whip Jim Clyburn (D-S.C.) suggested delaying sending the articles indefinitely.
“The delay is made necessary because the majority leader of the Senate has made it very clear that he’s not going to be impartial, he’s not going to be fair, he will collude, if you please, with the White House—at least the White House’s attorneys—to decide how he will go forward,” he told CNN. “Why would the speaker of the House step into that without trying to determine exactly what the majority leader plans to do?”
On Thursday, Harvard Law Professor Noah Feldman, who was called up as a Democrat witness during impeachment inquiry hearings, argued that the Democrats would be committing an error by delaying transmission of the articles.
“The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work,” Feldman wrote on Thursday, adding that “an indefinite delay would pose a serious problem.”