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“If you can impeach anyone who is not a sitting president, there are no limits to the power of the Congress to try ordinary citizens,” Dershowitz said. “It is plainly unconstitutional.”
ALAN DERSHOWITZ, FORMER TRUMP IMPEACHMENT DEFENSE TEAM MEMBER: It will be unconstitutional, but that probably won’t bother the senators.
The Constitution is very clear. The subject, the object, the purpose of impeachment is to remove a sitting precedent. And there are two precedents. One is very obvious. When President Nixon resigned in anticipation of being impeached and removed, there was no effort to impeach him after he left office. It was clear that the Senate had lost jurisdiction at that point.
The proponents cite another precedent. In 1876, there was a failed effort, a failed effort to remove the secretary of war. In an initial vote, the Senate voted close, in a close vote, that they did have jurisdiction to try somebody who had resigned.
But then, when it came to a vote on the merits, they lost, because 27 or so senators voted that they did not have jurisdiction. Those senators were right. There is no jurisdiction. You cannot put citizen Trump on trial. If you could do that, it would be a bill of attainder, number one, putting somebody on trial who was not a sitting president.
And, number two, the implications would be horrendous. It would mean that if, the Republicans came up with a terrific candidate, say, not Donald Trump, to run against President Biden in 2024, the Democrats could simply impeach him.
If you can impeach anyone who is not a sitting president, there are no limits to the power of the Congress to try ordinary citizens. It is plainly unconstitutional. And the Senate should not proceed with this unconstitutional act.
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