Congress broke two records on impeachment of Donald Trump
During this impeachment of Donald Trump, Congress broke two records. The first is obvious. The House impeached a president for a second time, which has never occurred in the history of our country. While I believe his remarks to his supporters last week were disturbing and a serious mistake, it did not meet the basis for removal under the Constitution, which led the House to break another record, which is less obvious but more important. In one day, it violated six separate provisions of the Constitution.
First, it violated the First Amendment, which prohibits the government from abridging free speech. By impeaching Trump for free speech that was protected in the unanimous Supreme Court decision in the case of Brandenburg versus Ohio, the First Amendment was violated.
Second, the House violated the substantive impeachment criteria for the Constitution, which limits impeachment to “treason, bribery or other high crimes and misdemeanors.” It cannot be a high crime or misdemeanor for a president to deliver remarks protected by the Constitution. If Congress can pass no law abridging free speech, then it certainly cannot pass one impeachment resolution abridging free speech of a president.
Third, it violated due process by handing the president and his legal team no opportunity to present a defense or to formally challenge the article of impeachment. This sets a precedent for any future president.
Fourth, by trying to put Trump on trial in the Senate after he leaves office, the House violated the provision that allows Congress to remove a sitting president and, only if the Senate decides to remove him by a vote, could it add the sanction for a future disbarment from running for office. Congress has no authority over any president once he leaves office. If Congress had the power to impeach a private citizen to prevent him from running in the future, it could claim jurisdiction over millions of Americans eligible to be candidates for president in 2024. This would be a perilous interpretation of the Constitution which would allow the party in control of Congress to impeach a popular candidate and preclude him from running.
Fifth, if the Senate were to conduct a trial of a private citizen, including a former president, then it would violate both the spirit and the letter of the prohibition against bills of attainder. For Great Britain, Parliament had the authority to try kings, other officials, and private citizens. The Framers of the Constitution rejected that power of Congress and also limited its trial jurisdiction to impeaching government officials only while they served in office and could be removed. To conduct a show trial of a past president would be in violation of the prohibition against bills of attainder.
Sixth, Congress voted in favor of the resolution calling on Vice President Mike Pence to violate the 25th Amendment of the Constitution by falsely claiming that Trump is unable to continue to perform his duties. It is clear that the Framers of the 25th Amendment had intended it to apply only to presidents disrupted by physical illnesses, such as a stroke, or by obvious mental incapacity, such as advanced Alzheimers, or turning unconscious after having been shot. To call on the vice president to improperly invoke the 25th Amendment was to act in violation of the Constitution.
We often hear that no one is above the law, including the president. That is true, and it also applies to Congress. Thus, the House is not above the law. It must comply with the six provisions of the Constitution that it has violated. Trump was wrong to give his address last week, and voters are entitled to take into account all his actions in the last four years.
However, the Constitution sets limits on the power of Congress over the president. These limits are critical to our system of separation of powers and of checks and balances. When any one branch will improperly seize power it does not have, this system is undone. Just as a president should be held to account for a violation of the Constitution, then so should the House when it exceeds its authority granted by the Constitution.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is author of the recent book “Cancel Culture: The Latest Attack on Free Speech and Due Process” and his podcast “The Dershow” is also now available on Spotify and YouTube. You can find him on Twitter @AlanDersh.