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Liberal Constitutional Attorney Alan Dershowitz: Jan 6. Criminal Referral Is 'Unconstitutional'

Rebecca Downs
Rebecca Downs  |  December 21, 2022 4:00 PM

Alan Dershowitz has often been a source of providing the voice of reason on constitutional matters, even and especially among liberals. While he himself is a Democrat, Dershowitz has defended former President Donald Trump, including during his impeachment trial. 

In light of the four criminal referrals that the January 6 select committee is issuing against former President Donald Trump to the Department of Justice (DOJ), Dershowitz is once more defending the former and potentially future president. 

On Tuesday, the day after the referrals were announced, Dershowitz penned an op-ed for Newsweek, "The Jan. 6 Committee's Referral Is Unconstitutional." 

In it, Dershowitz laid out how the "referral violates both the letter and spirit of the Constitution for at least two reasons," including when it comes to how Congress is only granted legislative powers, and thus it "is beyond the scope of its constitutional authority." Rather, that power, Dershowitz explained, belongs to the executive branch.

Congress is also denied the power to pass a "bill of attainder," which has historical implications behind it, as Dershowitz explained:

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Prior to America's independence, the British parliament enacted such bills that prosecuted named individuals. Our Constitution prohibited Congress from prosecuting named individuals. The power of Congress is limited to passing laws of general application that can be applied to specific individuals only by the justice department and a grand jury. A congressional committee officially voting to refer a named individual for prosecution violates the spirit of the explicit prohibition against congressional bills of attainder.

There is one possible exception to this separation of powers limitation on naming individuals. Section 5 of the 14th Amendment gives Congress the power "to enforce, by appropriate legislation" the provisions of that amendment, which include the disqualification from holding federal office anyone who "has engaged in insurrection or rebellion" against the United States or "given aid or comfort to the enemies thereof." Section 3 gives it the power to "remove such disability" by a two-thirds vote of each house. This is a very limited power intended to apply to southern rebels during the Civil War, as evidenced by the specific reference to "the loss or emancipation of any slave" in section 5. But, even if it were deemed applicable to the events of Jan. 6, 2021, the recent referral was not made pursuant to that amendment. Indeed, it was not made pursuant to any provision of the Constitution, because there is none that would authorize it.

That Section 5 of the 14th Amendment has certainly been oft-mentioned lately, as Rep. David Cicilline (D-RI) introduced a bill last week to bar Trump from holding federal public office again. Cicilline had been looking for support for the bill since at least last month, when Trump officially declared he was in fact running again in 2024. 

In the excerpt above, Dershowitz explains how in addition to "a very limited power intended to apply to southern rebels during the Civil War... the recent referral was not made pursuant to that amendment" and that "it was not made pursuant to any provision of the Constitution, because there is none that would authorize it."

In case there's any question as to how Dershowitz feels about the select committee, he gives further explanation there, especially when it comes to how there were no members selected by the minority party serving on the committee:

The Committee itself was composed of both Democrat and Republican kangaroos. The two "Republicans" were selected by Democrats. The Republicans originally appointed by the Republican minority leader were vetoed by Speaker Nancy Pelosi in violation of the traditions of the House of Representatives. The Republicans then refused to choose two other members, so the Democrats selected them. They served only as cover for the one-sided investigation, report and referrals. The Committee's proceedings were more like a show trial—complete with slickly presented videos—than a serious legislative hearing in aid of passing laws. It was reminiscent of a Democratic version of Republican McCarthyism back in the 1950s, where citizens were named and put on blacklists.

The so-called Jan. 6 Committee was the culmination of the "Get Trump" efforts that ignored Constitutional constraints and the rule of law. It may not be the last word, however, since there is always the possibility that the special prosecutor may indict. If he does, it won't be because of the congressional referral, it will be because the justice department's investigation independently produced compelling evidence of criminal conduct. It will also be, hopefully, because experienced prosecutors made prosecutorial decisions based on justice department standards, priorities, and the exercise of discretion, not based on partisan advantage.

Leading credence to the political and partisan nature of the select committee, Dershowitz warned that the "ill-advised congressional referral will make it more difficult to prosecute Trump without it appearing partisan." and that the select committee's "report and referrals will taint the special prosecutor's decision in the mind of many who will believe, even erroneously, that is was influenced by the corrupt committee process."

As Mia highlighted last month, that special prosecutor, Jack Smith, is already something of a fishy character. 

If anything, the select committee may have shot themselves in the foot. "This is a good lesson on the centrality of our separation of powers to our system of governance. It is an important reminder of why congressional committees should stay out of prosecutorial decisions and criminal referrals," Dershowitz writes in closing. 

Dershowitz isn't the only liberal to take issue with the referrals. Michael Tracey, as Matt highlighted, tweeted out that the referrals have no weight.

The op-ed was featured on RealClearPolitics' Morning Edition on Wednesday, as "J6 Committee's Referral Blatantly Unconstitutional."

Dershowitz also discussed the constitutionality, or lack thereof, of the referrals on his podcast.