Alan Dershowitz, the long-time Harvard Professor and constitutional scholar who defended former President Trump during his first impeachment trial, published an opinion in the Wall Street Journal titled No, You Can't Impeach a Former President. In this opinion, Dershowitz argues that Trump's upcoming Senate impeachment trial must be dismissed because the Senate no longer has jurisdiction to convict Trump since he is no longer the president.
Article II Section 4 of the United States Constitution reads:
"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."
Dershowitz argues that this clause only applies to a sitting president. Explaining his reasoning in an interview with Fox News, Dershowitz states:
Dershowitz added that "the Constitution specifically says the president shall be removed from office upon impeachment." He said that because it does not say "the former president," the Senate's "jurisdiction is limited to a sitting president," barring the possibility of a trial.
The power of Congress to impeach the President is enumerated in Article I Section 3 of the United States Constitution:
"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
In No, You Can't Impeach a Former President, Dershowitz argues that this provision is more limited than Democrats would hope it to be.
"[The Constitution] also mandates that 'judgment in cases of impeachment shall not extend further than to removal and disqualification'—not or disqualification."
Because Trump has already left office, according to Dershowitz, he cannot be removed from office. Disqualification, by default, is therefore also off the table. He also explains this is a dangerous precedent: "If the republicans regain the House in 2022 using the current Trump precedent could they then impeach citizen Hillary Clinton for Benghazi and Servergate."
Dershowitz will be joining the RNLA this Friday at 3:00 pm for a webinar discussing the unconstitutionality of the upcoming impeachment trial. To RSVP, click here.