The country continues to reel in the fallout from the January 6th storming of Capitol Hill, with Democrats in the House moving to impeach President Trump for “incitement of insurrection.”

But with only days left until President-elect Joe Biden takes office, both lawmakers and constitutional experts have condemned the impeachment as political theater, while Biden has expressed concern the Senate trial could preoccupy the start of his administration.

On January 15th, on WABC’s Bernie and Sid in the Morning, attorney and constitutional law expert, Alan Dershowitz, who represented President Trump in his first impeachment trial, questioned the legal foundation of this impeachment.

“Impeachment is designed to remove a sitting president from office,” Dershowitz explained.    “Once he’s no longer sitting, you can’t put him on trial.”

He explained this new impeachment violated a specific provision in the Constitution, forbidding lawmakers from passing “bill of attainders,” or acts of legislature that finds someone guilty, often without due process. Dershowitz warned of this new use of impeachment as a weapon of partisan politics, saying it set a dangerous precedent that would resonate long after Trump.

“If the goal of impeachment is to stop somebody from running in the future, then none of us are safe from that,” Dershowitz noted, adding “any party in power” could levy the threat of impeachment against the other.

While the idea of an impeachment trial beginning on inauguration day has been considered, Dershowitz told Bernie and Sid a former president simply cannot be impeached.  He doubted Chief Justice John Roberts would preside over a “mock show trial,” and railed against the accelerated impeachment debate where the President was barred from “a chance to provide a defense.”

“This is a political theater show trial—it has no implications because you can’t try somebody who’s no longer president in the senate,” Dershowitz said.

While President Trump could potentially be taken to court in the state or civil courts, Dershowitz said the President’s words, let alone the constitutional technicality, were “core protected political speech”:

“How many times in the Capitol have we heard labor leaders, feminists, radicals, leftists, civil rights activists say, ‘Take over the Capitol, confront them, show them we’re strong, let’s fight back’—you know, those are fighting words, and fighting words are part of political rhetoric protected by the Constitution.”

Dershowitz’s words echo in light of Twitter’s permanent suspension of President Trump’s account, the deplatforming by Amazon, Google, and Apple of conservative-oriented social networking sites, and the pulling out of corporate donors from those within the Trump sphere.  The constitutional expert and law professor compared the corporate crackdown to the cold-war paranoia of Joe McCarthy.

“We the listeners and the viewers have the right to hear diverse and different points of view,” Dershowitz asserted. “And there’s nobody—not my colleagues at Harvard—nobody—, not the ACLU—that’s standing up for the 1st Amendment today because Trump is so controversial and unpopular, and I’m going to continue to stand up for the 1st Amendment.”

Listen to the interview below


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