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Top Attorney: Dems’ Impeachment Trial ‘More Dangerous’ to Nation Than Trump

Some of America’s most prominent Constitutional attorneys are weighing in on the Senate impeachment trial of Donald Trump.

In a word, it’s not good. Harvard emeritus law professor Alan Dershowitz blased the fiasco as “dangerous”:

“This brief filed by the Democrats in the House of Representatives and submitted to the Senate,” Dershowitz said, “This brief is more dangerous to freedom of speech, more dangerous to our democratic governance than they accuse Donald Trump of doing.”

“Donald Trump is a former president,” he went on. “These are members of Congress. They are asking the Senate to abridge the First Amendment. They are telling the U.S. Senate to ignore the First Amendment. Again, ‘the First Amendment does not apply at all to an impeachment proceeding. Ignore it. Don’t pay any attention to the First Amendment.”

“Why is the First Amendment in the Constitution?” Dershowitz asked, bewildered. “It’s a constraint on Congress. A constraint on the Senate. A constraint on the House. A constraint on Jamie Raskin,” he added, referring to the lead impeachment manager, who was also once Dershowitz’s student.

“And yet he doesn’t seem to understand that. Congress can’t do anything in violation of the First Amendment.”

Interestingly, Dershowitz was not a fan of the performance of the Trump legal team’s lawyer Bruce Castor.

“There is no argument — I have no idea what he is doing,” he said dryly in an interview with Newsmax.

But another rebuke for the Trump legal team came from liberal Constitutional law professor Jonathan Turley, who has often played gadfly to the left in recent years, seemingly out of necessity to balance its arguments.

Turley argues against Dershowitz’s informal defense of Donald Trump during the first impeachment trial.

“Castor is now making a Rule 23 argument on indivisibility of the article to highlight the 14th Amendment claim. I was also critical of that reliance,” he said. “The article was poorly crafted and this was one of the examples.”

But Turley had much more to say about the Trump legal team’s approach.

“More heat than light from the defense so far,” Turley also said. “The team needs to focus on the constitutional claims and history. David Schoen is tearing into the Democrats when the Senate needs argument on the constitutional issues.”

“I am surprised by the long discussion of the Senate before getting to such concrete arguments,” Turley remarked. “There is also no focus on the retroactive trial issue as a foreshadowing of the case for dismissal.”

“The defense has eaten roughly half of its time without landing a glove on the constitutional questions,” he added midway into Schoen’s statements. “Schoen was said to be the one who would present an ‘erudite’ analysis of the constitutional issue.”

“It is interesting that the defense team is focusing more on the prudential concerns not the constitutional issues related to retroactive trials,” he criticized. “Certainly, such prudential arguments might be able to pick up a couple votes. The real objective is to make the vote closer even if it will not reach 50 votes. The defense could pick up a couple votes to put this closer to the line. The due process and prudential issues are different from the issue underlying the Paul motion,” he also commented.

The Democrats also got “fact-checked” by the attorney.

But Turley reserved his strongest criticisms for the Democrats. He recently criticized Laurence Tribe for attacking Turley on his purported evolving views on impeachment trials:

On the substantive issue of retroactive trials, Tribe said that I “wrote the very opposite not that long ago.” What Tribe called “not long ago” was in fact over two decades ago. He is referring to a brief discussion of the trial of William Belknap after he resigned as Secretary of War in a long work on the history and function of impeachments. In my 1999 Duke Law Journal article on impeachment, I wrote that “[t]he Senate majority, however, was correct in its view that impeachments historically extended to former officials, such as Warren Hastings.” See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1-146 (1999)(emphasis added). Some have cited that line to show that I have changed my position on the subject. It doesn’t. It indeed was used retroactively in Great Britain as a historical matter, which I have always acknowledged. I was explaining that the Belknap trial obviously shows that these trials were viewed as having a value beyond removal as a condemnation of wrongdoing and disqualification from future office. That is obvious since Belknap was no longer in office. I still believe that. I have explained how my views of constitutional interpretation have evolved over the last 30 years, but my views on the standard for impeachment have not changed significantly.

Furthemore, he shreds the Democrats for appearing to “tank” the impeachment trial. In other words, since Senator Rand Paul’s motion to dismiss was backed by 45 Republicans, a conviction is politically unlikely. Therefore, the Democrats will likely go all-out to make an emotional case, rather than a legally and constitutionally grounded one.

This is belied in part by the Democrats even proposing to amend the Constitution to get a conviction, a potential violation of prohibitions against ex post facto laws.

The Constitutional professor continued his analysis.

“The second trial is shaping up to be a curious exercise designed more to enrage than convict. While legal eagles will be analyzing every move, what citizens really need is an Eagles fan to understand what is unfolding. In the NFL, it is called ‘tanking,'” Turley tweeted.

“When it comes to football, tanking allegations arise when the inexplicable speeds along the inevitable. The House may have reached that point when the managers seemed to be trying harder to make a better case for losing than winning,” he continued.

“That is why, with the start of the trial, there is growing suspicion of a tanked trial,” he added. “The House will present a case long on emotions and short on evidence. Indeed, that is unfolding now as the House managers play videotapes of the disgraceful riot in the Capitol.”

The Senate impeachment trial, indeed, was not about the “facts.” It was about the Democrats’ emotionally charged arguments and baseless claims. Americans deserve better, but are unlikely to get any better from this Congress.

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OPINION: This article contains commentary which reflects the author's opinion.


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