It is difficult to imagine anything more unconstitutional, more violative of the intention of the Framers, more of a denial of basic due process and civil liberties, more unfair to the president and more likely to increase the current divisiveness among the American people.
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Pelosi's Proposal to Withhold Senate Trial Is Unconstitutional
By Alan Dershowitz
Thursday, 19 December 2019 02:40 PM
U.S. House Speaker Nancy Pelosi, D-Calif., strikes the gavel after announcing the passage of article II of impeachment against President Donald Trump, Dec. 18, 2019, on Capitol Hill in Washington. (Patrick Semansky/AP)
Now that the House has impeached President Trump, the question is what happens next. Speaker Pelosi has suggested that she may withhold the articles of impeachment from the Senate as part of a negotiating tactic. This ploy drives from an idea put forward by my friend and colleague Laurence Tribe, who has proposed that the Senate not conduct a trial — at least not now.
He would withhold the trial until the Senate agreed to change its rules, or presumably until a new election put many more Democrats in the Senate. Under his proposal, there might never be a Senate trial, but the impeachment would stand as a final and permanent condemnation of President Trump.
It is difficult to imagine anything more unconstitutional, more violative of the intention of the Framers, more of a denial of basic due process and civil liberties, more unfair to the president and more likely to increase the current divisiveness among the American people. Put bluntly, it is hard to imagine a worse idea put forward by good people
Denying President Trump and the American people a trial in the Senate would constitute a variation on the title of my new book, "Guilt by Accusation."
President Trump would stand accused of two articles of impeachment without having an opportunity to be acquitted by the institution selected by the Framers to try all cases of impeachment. It would be as if a prosecutor deliberately decided to indict a criminal defendant but not to put him on trial.
This would deny him the right to confront his accusers and to disprove the charges against him. Tribe himself uses a variant of this analogy.
He hypothesizes a situation in which a prosecutor indicts a criminal defendant and then discovers that the proposed trial would be been tainted by jury tampering. Would the prosecutor then not have the right to withhold the trial until such time as an untainted jury could be seated?
As a law professor who has employed hypotheticals for more than half a century, this one fails on its face. A true analogy would be not to a prosecutor who discovered
after indictment that the jury was tainted, but to a prosecutor who believed
before the indictment that there was no possibility of a fair jury trial.
A prosecutor who indicted under such circumstances — not intending to bring the defendant to trial — would be violating his duty and denying the defendant his fundamental rights.
An even better analogy would be a prosecutor who knew that both the grand jury and the petit jury were tainted by preexisting prejudices: the grand jury was biased against the defendant and the petit jury in his favor.
Nonetheless, he went forward with an indictment by the grand jury that was biased against the defendant and withheld a trial by a petit jury that was biased in the defendant’s favor.
Tribe’s analogy fails for another reason as well.
Tribe is the first to admit in his excellent book and prior writings that the process of impeaching and removing a president contains political elements as well as judicial ones.
So he should not be surprised that the Democratic dominated House pre-judged Trump’s guilt, while the Republican house may have pre-judged his innocence. That is the nature of the system and should be addressed as a
whole not by accepting the partisan nature of an impeachment, while rejecting the partisan nature of a trial.
This is yet another example of partisans failing the "shoe on the other foot" test. I cannot imagine Pelosi or Tribe proposing this jerry-rigged unconstitutional gambit had Hillary Clinton been elected president, and had a Republican House impeached her.
They would then be demanding that the Democratic controlled Senate conduct a trial and acquit their improperly impeached candidate.
Alexander Hamilton worried that the greatest danger of misusing the impeachment process would be to make it turn on the comparative votes each party could muster in the House and the Senate. This danger has come to fruition with the current impeachment — the first one in American history — that is based purely on partisan votes.
The proper response is not to distort, ignore and violate the explicit terms of the Constitution that view impeachment by the House as a
first steptoward a trial by the Senate. An impeached president has a right to be tried and acquitted by the Senate.
Denying him and the American people that fundamental right might serve the temporary interests of the Democratic Party, and academics who support it, but would do violence to the rule of constitutional law that is supposed to serve all Americans, regardless of party or ideology.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Guilt by Accusation" and "The Case Against the Democratic House Impeaching Trump." Read more reports from Alan M. Dershowitz – Click Here Now.
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