Alan Dershowitz argues in the Wall Street Journal that the Constitution does not allow a former president to be tried for impeachment. He also thinks that to try Trump now would be unwise.
A lot of what he says to support the latter claim (e.g., that Trump’s impeachment was about “revenge” and we’d be better off moving on) is just an exercise in question-begging to someone who thinks (as I do) that Trump should be tried and convicted.
But Dershowitz’s reasoning about the Constitution also falls well short of establishing what he thinks it does. Allow me to write a micro-commentary (in bracketed italics) on the argument:
The Constitution is clear: “The president . . . shall be removed from office on impeachment . . . and conviction”—not by the expiration of his term before the impeachment process is complete. [But you may also read the Constitution as saying that removal is a necessary consequence of conviction for someone who holds office, not as limiting conviction to those who do. (Dan McLaughlin and Ramesh Ponnuru have made this point.)] It also mandates that “judgment in cases of impeachment shall not extend further than to removal and disqualification”—not or disqualification. [But see “extend further.” You may read this part as establishing the maximum consequence (and thus ruling out things such as imprisonment and exile), not as establishing the only consequence. And if “removed” in the previous quotation is read as establishing a necessary consequence for officeholders rather than as limiting impeachment to officeholders, then “removal” should of course be read the same way here—Dershowitz is not adding anything to his previous sentence.]
When the Constitution was written, several states allowed impeachment of former officials. The Framers could easily have included that provision, but they didn’t. [Inconclusive. They might have thought it went without saying, or wished to leave the determination to Congress’s own sense of its powers.] They also explicitly chose to prohibit the British practice of trial by legislature—excepting only impeachment—and “bill of attainder,” any punitive legislative act against a specific person. [Key word: “excepting.” And the impeachment process is not “punitive” in the relevant criminal sense.] The courts have held that the punishments prohibited by the Bill of Attainder Clause include disqualification from holding office. [So what? Impeachment is not a bill of attainder.] Moreover, the Constitution requires the chief justice to preside “when the president of the United States is tried.” [So what? That doesn’t imply that only a sitting president may be tried.]
This concludes my micro-commentary.
But I’ll take the opportunity to add that Dershowitz’s extremely narrow definition of “high crimes and misdemeanors” would have the absurd consequence of causing the Constitution to undermine itself, as I explained during Trump’s last trial.