How Should the Senate Deal with an Unconstitutional Impeachment by the House?
by Alan M. Dershowitz • December 11, 2019 at 2:00 pm
These two grounds [of impeachment] — abuse of power and obstruction of congress — are not among the criteria specified for impeachment. Neither one is a high crime and misdemeanor. Neither is mentioned in the constitution. Both are the sort of vague, open-ended criteria rejected by the framers. They were rejected precisely to avoid the situation in which our nation currently finds itself.
So, what options would the senate have if the House voted to impeach on two unconstitutional grounds? Would it be required to conduct a trial based on "void" articles of impeachment? Could it simply refuse to consider unconstitutional articles? Could the president's lawyer make a motion to the Chief Justice — who presides over the trial of an impeached president — to dismiss the articles of impeachment on constitutional grounds?
Regardless of the outcome, the damage will have been done by the House majority that will have abused its power by weaponizing the House's authority over impeachment for partisan purposes — exactly as Hamilton feared.
If the House of Representatives were to impeach President Trump on the two grounds now before it, the senate would be presented with a constitutional dilemma. These two grounds— abuse of power and obstruction of Congress— are not among the criteria specified for impeachment. Neither one is a high crime and misdemeanor. Neither is mentioned in the constitution. Both are the sort of vague, open-ended criteria rejected by the framers. They were rejected precisely to avoid the situation in which our nation currently finds itself. Abuse of power can be charged against virtually every controversial president by the opposing party. And obstruction of Congress — whatever else it may mean — cannot extend to a president invoking privileges and then leave it to the courts to referee conflicts between the legislative and executive branches.
