Retired Harvard law professor Alan Dershowitz told Newsmax TV on Monday that former President Donald Trump’s lawyers have three fundamental principles to argue in his impeachment trial when it starts on Tuesday, not the least of which is that the Senate can’t violate the Constitution to convict him.
Dershowitz, who defended Trump in his first impeachment trial a year ago, said Trump’s attorneys should argue several points against the charge of “incitement to insurrection.” The charge by the House refers to when he spoke to supporters on Jan. 6 in Washington before some breached the U.S. Capitol. Some lawmakers allege he egged them on in his remarks before the riot, in which there were five fatalities.
Point 1 to Dershowitz: The Senate has no jurisdiction over a former president. If it did, it could convict any former officeholder -- think former President Bill Clinton, for instance -- without a statute of limitations.
Secondly, Trump’s speech to supporters in Washington, in which he reiterated his long-standing claim that he lost the Nov. 3 election due to massive election fraud, was constitutionally protected.
He said the Trump team should argue that Congress cannot deny Trump the freedom of speech by saying it doesn’t apply to him.
“The Senate can’t violate the First Amendment in it’s impeachment,” Dershowitz said on “Spicer & Co.” “The House managers said the First Amendment isn’t applicable. Impeachment stands on its own.”
He then described a hypothetical case, in which the House impeaches a Muslim because he practices Islam.
“The Constitution says ‘no religious test shall ever be required,’” Dershowitz said. “But the House managers will say: ‘That’s not relevant. This impeachment is political.’
"But of course they’re bound by the Constitution, and the First Amendment says ‘Congress,’ ‘Congress shall make no law,’ ‘no law abridging the freedom of speech.’ And no law has been interpreted as ‘take no action that has consequences.’ It doesn’t matter if it’s a law or administrative actions.”
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