Case Against the New Censorship: Protecting Free Speech From Big Tech, Progressives, and Universities by Alan Dershowitz

Author:Alan Dershowitz [Dershowitz, Alan]
Language: eng
Format: epub
Tags: political science, censorship, Civil Rights, Political Freedom, Political Process, Media & Internet, law, Media & the Law
ISBN: 9781510767744
Google: c8wgEAAAQBAJ
Publisher: Simon and Schuster
Published: 2021-04-20T23:47:27.492813+00:00

D. Congress Broke Records on Impeachment of Donald Trump

[On January 14, 2021, shortly after the House once again impeached President Trump, I explained why this ill-conceived action violated six provisions of the Constitution]

First, it violated the First Amendment, which prohibits the government from abridging free speech. By impeaching Trump for free speech that was protected in the unanimous Supreme Court decision in the case of Brandenburg versus Ohio, the First Amendment was violated.

Second, the House violated the substantive impeachment criteria for the Constitution, which limits impeachment to “treason, bribery or other high crimes and misdemeanors.” It cannot be a high crime or misdemeanor for a president to deliver remarks protected by the Constitution. If Congress can pass no law abridging free speech, then it certainly cannot pass an article of impeachment that abridges the free speech of a president.

Third, it violated due process by handing the president and his legal team no opportunity to present a defense or to formally challenge the article of impeachment. This sets a precedent for any future president.

Fourth, by trying to put Trump on trial in the Senate after he leaves office, the House violated the provision that allows Congress to remove a sitting president and, only if the Senate decides to remove him by a vote, could it add the sanction for a future disqualification from running for office. Congress has no authority over any president once he leaves office. If Congress had the power to impeach a private citizen to prevent him from running in the future, it could claim jurisdiction over millions of Americans eligible to be candidates for president in 2024. This would be a perilous interpretation of the Constitution, which would allow the party in control of Congress to impeach a popular candidate and preclude him or her from running.

Fifth, if the Senate were to conduct a trial of a private citizen, including a former president, then it would violate both the spirit and the letter of the prohibition against bills of attainder. In Great Britain, Parliament had the authority to try kings, other officials, and private citizens. The Framers of the Constitution rejected that power of Congress and also limited its trial jurisdiction to impeaching government officials only while they served in office and could be removed. To conduct a show trial of a past president would be in violation of the prohibition against bills of attainder.

Sixth, Congress voted in favor of the resolution calling on Vice President Mike Pence to violate the 25th Amendment of the Constitution by falsely claiming that Trump is unable to continue to perform his duties. It is clear that the Framers of the 25th Amendment had intended it to apply only to presidents disrupted by physical illnesses, such as a stroke, or by obvious mental incapacity, such as advanced Alzheimer’s, or falling unconscious after having been shot. To call on the vice president to improperly invoke the 25th Amendment was to act in violation of the Constitution.

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