Alan Dershowitz Questions if Trump Criminal Referral Is Constitutional

Attorney Alan Dershowitz says that the House committee investigating January 6 violated the U.S. Constitution in several ways by referring former President Donald Trump for prosecution.

Dershowitz, a Harvard law professor who represented Trump in his impeachment trial in 2020 and more recently represented former Arizona gubernatorial candidate Kari Lake in her election-challenging lawsuit, discussed the House committee's criminal referrals on his podcast, The Dershow, on Monday evening.

The bipartisan committee unanimously voted earlier in the day to refer Trump for charges regarding his actions related to the riot at the U.S. Capitol on January 6, 2021, including for obstruction of an official preceding, conspiracy to defraud the U.S., conspiracy to make a false statement, and inciting, assisting or aiding or comforting an insurrection.

According to Dershowitz, the committee violated the Constitution by overstepping its limited powers as part of a legislative body that are mapped out in Article 1.

"Congress has only legislative powers," Dershowitz argued on his show. "It does not have prosecutorial authority....I challenge anybody to show me anything in this Constitution which explicitly or even implicitly gives Congress the power to refer cases of individuals for prosecution."

Dershowitz Argues January 6 Committee Violated Constitution
In the inset, attorney Alan Dershowitz speaks during an interview on May 18, 2010, in Jerusalem. Members of the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol vote unanimously to... Lior Mizrahi/Drew Angerer/Getty Images

Dershowitz also pointed to Section 3 of Article 1, which states that Congress cannot pass a bill of attainder—a piece of legislation that declares a party is guilty of a crime.

The House committee's referrals do not mean that Trump is guilty of the criminal statutes they mention, however, and it will be up to Attorney General Merrick Garland to decide whether to pursue federal charges based on the committee's findings.

The Harvard professor also called out his former law student, Maryland Representative Jamie Raskin, a Democrat who serves on the January 6 committee. Dershowitz said Raskin and other members of Congress on the House committee "ignored the Constitution and put partisanship before law."

"You were a good student," Dershowitz said. "I contributed to your campaign. But you're wrong about this one. And you've been wrong about almost everything regarding Trump because you put politics before principle."

Raskin, who graduated from Harvard Law School in 1987, told MSNBC earlier on Monday that the House committee found evidence of "numerous precipitating moments" from Trump that led to violence on January 6, and that the congressman believed he and the committee had "done everything within our power to make available all of this significant information."

"Our committee is coming to a close," Raskin told MSNBC. "So we repose our faith and our confidence at this point in the executive branch of government and in the Department of Justice to pursue all of those leads."

Newsweek reached out to Raskin's team for comment.

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About the writer


Kaitlin Lewis is a Newsweek reporter on the Night Team based in Boston, Massachusetts. Her focus is reporting on national ... Read more

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