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Pelosi’s Proposal to Withhold Senate Trial Is Unconstitutional

Photo: U.S. House Speaker Nancy Pelosi, D-Calif., strikes the gavel after announcing the passage of article II of impeachment against President Donald Trump, Dec. 18, 2019, on Capitol Hill in Washington. (Patrick Semansky/AP)

By Alan Dershowitz
Thursday, 19 December 2019

Now that the House has impeached President Trump, the question is what happens next. Speaker Pelosi has suggested that she may withhold the articles of impeachment from the senate as part of a negotiating tactic. This ploy drives from an idea put forward by my friend and colleague Laurence Tribe, who has proposed that the Senate not conduct a trial — at least not now.

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.

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

Denying President Trump and the American people a trial in the Senate would constitute a variation on the title of my new book, “Guilt by Accusation.”

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.

This would deny him the right to confront his accusers and to disprove the charges against him.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School.

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