Democrats who are floating the validity or prospect of invoking the 14th Amendment as a means to disqualify former President Trump from seeking office again are playing with Constitutional fire, Harvard Law professor-emeritus Alan Dershowitz said Tuesday.
Dershowitz, who noted he did not vote for Trump, said whether or not voters support the former president, all should have the right to make their voice heard at the polls.
Several Democrats have recently been asked about or have discussed the potential of using the 14th Amendment – which primarily granted citizenship to former slaves and all who were born or naturalized in the United States.
The lawmakers have keyed into Section 3 of the amendment, which states "no person shall … hold any office… who, having previously taken an oath… shall have engaged in insurrection or rebellion against" the U.S. or given "aid and comfort to the enemies thereof."
In a Sunday interview with ABC News, Democratic Virginia Sen. Tim Kaine said he had discussed the prospect at the time of Trump's second impeachment, telling host George Stephanopoulos it "might have been a more productive way to go," – while Democratic California Rep. Adam Schiff told MSNBC the so-called insurrection clause "fits Donald Trump to a ‘T’," following the Capitol riot.
Dershowitz told "Hannity" he strongly disagreed, citing Kaine's comments and saying some Trump critics want the amendment to serve as an "impeachment substitute."
"He said… ‘I thought it would be easier and smoother to go [via] the 14th Amendment’ – well, of course. You don't need any proof. You don't need [a] 50 percent vote in the House. You don't need a two-thirds vote in the Senate. You don't need specific charges: treason, bribery, other high crimes and misdemeanors. You don't need due process," he said.
"You [would] just need a couple of secretaries of state, Prof. Laurence Tribe and Adam Schiff to say it's our opinion that this is an insurrection. We don't think what happened after the George Floyd killing was an insurrection. We don't think what happened with open borders or sanctuary cities is an insurrection. But we do think this was an insurrection," Dershowitz continued.
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He said there have been no insurrection indictments or convictions of Trump, and posited the move's supporters believe the situation to be "self-proving."
Dershowitz went on to say such thoughts essentially nix the Constitution's impeachment provisions and the 25th Amendment, which allows the vice president and the cabinet to notify Congress and make the VP the acting president.
The floated procedure also would deprive Trump of due process and the voters of their democratic say, he added.
Dershowitz concluded it would be a "disgrace" to deprive the voters of such, including those like himself that might vote against Trump.
Last week, a top prosecutor in the Clinton-Lewinsky-Whitewater investigation appeared to concur with some of Dershowitz' comments, saying the 14th Amendment's clause in question is not "self-executing," – meaning it would take congressional action to enforce against Trump.
"The idea that you would have some state official, a partisanly-elected state official, disqualify Trump without any kind of due process at all, I think is not going to fly," Sol Wisenberg told "The Ingraham Angle."
Critics like former Acting Attorney General Matthew Whitaker further noted the amendment's clause was aimed at former officials and military officers of the Confederacy.
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