A victory for the Constitution, not so much for Trump

The Senate’s decision on Saturday to acquit former President Trump by a vote of 57 to 43 — a two-thirds majority was needed to convict — is a modest victory for the Constitution. Whether the 43 senators, all Republicans, voted to acquit on the ground that the Senate has no jurisdiction over a private citizen or on the ground that Trump’s Jan. 6 speech was protected by the First Amendment, the Constitution was vindicated.

Senate Minority Leader Mitch McConnell (R-Ky.), in a scathing attack on Trump, explained that his vote to acquit was based, in large part, on the fact that the former president is now a private citizen. He correctly observed that the Senate does not have a roving commission to impeach and disqualify former officeholders. To conclude otherwise would be to empower Congress to disempower tens of millions of voters from casting ballots for their candidates of choice.

Trump is now free to run for reelection in 2024. The Senate’s decision to acquit Trump also supports the First Amendment, which was intended to protect the kind of controversial, even dangerous, speech that he delivered on Jan. 6 near the White House to tens of thousands of supporters. To have ruled otherwise would have disemboweled the First Amendment in the context of presidential rhetoric about elections.

I agree with McConnell that Trump was wrong in arguing that the election was stolen and fraudulent, but the First Amendment protects wrong opinions as surely as it protects correct ones. Trump had as much right to say, erroneously, that the election was unfair as President Biden has the right to say, correctly, that he was elected fairly. And we have the right to judge each of them and their allegations morally and politically but not to use them as the basis for impeachment.

If Trump were to run against Biden in 2024, all Americans can vote based in part on who they think told the truth about the 2020 election.

Although the Senate vote allows citizen Trump to run for election again in 2024, the trial itself has made it less likely that he will be able to do so successfully. The Democratic House impeachment managers presented a devastating picture of the events at the Capitol and of Trump’s moral and political responsibility for creating an atmosphere that may well have contributed to the violence. McConnell’s speech following the Senate’s vote agreed with much of that case. But there is an enormous difference between moral and political responsibility, on the one hand, and constitutional impeachability consistent with the First Amendment, on the other hand. It is the former that may well determine Trump’s political fate.

The speech he gave on Jan. 6, though constitutionally protected, was irresponsible, especially in light of the rhetoric that proceeded it for several months. In my view, and in the view of many thoughtful Americans of both parties, including McConnell, the election was not stolen. There may well have been mistakes, both of a legal and factual nature. But these mistakes are unlikely to have produced enough of a disparity to change the outcome. Biden, after all, decisively won both in the Electoral College and in the popular vote. There is a heavy burden of proof on those challenging the outcome of an election and, based on the evidence I have seen, that burden was not satisfied by Trump and his lawyers. Moreover, there are processes for challenging flawed elections. These processes include internal reviews within state election institutions as well as judicial reviews by the courts. Although I think it would have been better if the courts had conducted more extensive reviews on the merits and demerits of the claims, the processes went forward lawfully and fairly.

Trump was wrong, in my view, not to concede after it became clear that he had exhausted all appropriate remedies, and he was wrong not to attend the Biden inauguration. He also was wrong to call on protesters to descend on the Capitol on the day that members of the House and Senate were certifying the Electoral College votes. He had the constitutional right to say what he said, but he was wrong, in my view and that of McConnell and many others, to exercise that right in the manner that he did.

History will judge Trump harshly for his conduct between Nov. 6 and Jan. 20. But history also will harshly judge those congressional Democrats and Republicans who organized and voted for the two impeachments of Trump for conduct that does not come within the constitutional criteria authorizing impeachment.

This position may anger both opponents and supporters of Trump. But it should please all those who place allegiance to the Constitution above allegiance to person or party.

Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump in the first Senate impeachment trial. He is author of the recent book “Cancel Culture: The Latest Attack on Free Speech and Due Process,” and his podcast “The Dershow” is available on Spotify and YouTube. You will find him on Twitter @AlanDersh.