Law professor: Pelosi’s refusal to send impeachment articles to Senate is ‘unconstitutional’

Noted constitutional law professor Alan Dershowitz said in a column published Thursday that House Speaker Nancy Pelosi’s decision to withhold sending the two articles of impeachment against President Trump to the Senate for trial is “unconstitutional.”

Dershowitz said he disagreed with his “friend and colleague,” Laurence Tribe, who has advised Pelosi on her course of action.

“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,” Dershowitz wrote.

“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,” he continued.

“Put bluntly, it is hard to imagine a worse idea put forward by good people.”

Pelosi said Thursday that there had not been any “discussions” yet about assigning House managers to present the case of impeachment to the Senate, as prescribed by the Constitution.

She also claimed that she would withhold sending the articles to the upper chamber until she was assured of a “fair trial.”

But doing so would deprive the president of his right to defend himself, Dershowitz argued.

“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,” he wrote.

“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 added.

Noah Feldman, another law professor, argued in a separate column in Bloomberg that until Pelosi transmits the articles of impeachment to the Senate, Trump has yet to be formally impeached.

“According to the Constitution, impeachment is a process, not a vote. If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all,” he wrote.

“The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work,” said Feldman, who testified in support of Trump’s impeachment before the House last month.

“But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial,” Feldman added.

For his part, Dershowitz argued that the Democrat-led impeachment was of a type the founding fathers warned against.

“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,” he wrote.

“This danger has come to fruition with the current impeachment — the first one in American history — that is based purely on partisan votes.”

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