I’ll say this up front: a lawyer saying something about the law does not mean it’s true. And Alan Dershowitz recently showed that he has some serious deficiencies in his expertise…
Just the News: “Alan Dershowitz: Trump could move to expunge 2019 impeachment after release of bombshell evidence“
Dershowitz, a Democrat at the time who worked to defend Trump at the impeachment trial that ended in the president’s acquittal, said it would be “an interesting, novel approach” for Trump to go to Chief Justice John Roberts, who presided over the case, or Congress and ask for the impeachment to be reversed because the defense team was denied the right to confront his accusers with exculpatory evidence.
“It’s never been done. I don’t see any reason why it couldn’t be done,” Dershowitz said during an interview Monday night on the Just the News, No Noise television show. “Impeachment is a quasi-judicial procedure, whether you have to go back to Congress and ask them to expunge it or go to the courts.
Impeachment isn’t a “quasi-judicial procedure”. It’s a purely political one. And practically every part of the impeachment process is immune to judicial review.
A singular event in history is Dershowitz’s justification for the claim that Trump could be “unimpeached”. And it’s also the ONLY time this has occurred that I’m aware of. Back in 1834, the Senate made the extraordinary move of censuring then-President Andrew Jackson by mere resolution with a 26-20 vote almost entirely on party lines:
Resolved, That the President, in the late Executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.
Jackson rightly called the move unconstitutional. The Senate or House censuring one of their own is not uncommon and perfectly allowable under the Constitution, as it gives each chamber of Congress the sole authority to punish or expel its members. But the Senate cannot censure any member of the House of Representatives, and vice versa.
And, largely, they cannot censure anyone outside their respective membership and anyone else working for the Capitol.
The House has the sole power of impeachment. And a censure by the Senate against anyone who is not a Senator or employed by the Senate or Capitol declares someone guilty of fireable, impeachable, or even prosecutable offenses via legislative action. The very definition of a bill of attainder.
In an attempt to correct the move, multiple attempts were made to expunge the censure from the record. Which is itself just as unconstitutional as censuring the President in the first place. From Article I, Section 5 of the Constitution:
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal.
This largely means that what is recorded in the journal cannot then later be removed from it. Any corrections come via floor resolutions that point out the previous error and then correct that when the resolution is approved. And after an expungement vote succeeded in 1837, after Jackson was no longer in office, Secretary of the Senate Asbury Dickins seemed to recognize this. Since he merely outlined the entry for the censure vote and wrote over only part of it that it had been “expunged by order of the Senate” instead of doing anything more to make the journal entry largely unrecognizable.
But no historians see the expungement vote as valid and Jackson is still recognized as the only President to have been censured by the Senate.
But Dershowitz – and some conservative commentators have latched onto this – seems to think that either 1. the Supreme Court can order Congress to expunge something from their record, or that 2. the House can do it on their own. Neither is true.
Again the House and Senate, per the Constitution, must maintain adequate records of their proceedings. There is nothing in the Constitution allowing them to then later expunge that record. And the Senate’s vote in 1837 to expunge their record of their censure of Andrew Jackson is the only time any vote was made to expunge anything from either chamber’s journals. So the Senate and House have otherwise operated with the idea that everything recorded in their respective journals must stay in those journals.
And, as already mentioned, Dickins operated with that idea by not actually doing anything to make the censure vote’s entry unrecognizable, instead only noting that the Senate “ordered” it be expunged.
And the idea that the Supreme Court or any Court within the Federal judiciary can order Congress to do anything is laughable. But plenty of people believe it. As an example, when the Courts declare a statute or some other Act of Congress to be unconstitutional, Congress does not then work to repeal or amend that Act and the Courts do not and cannot order them to do so.
But again, plenty of people keep thinking that a Court can just order Congress to do things in much the same way they do actually issue injunctions against the Executive Branch. Except the Constitution largely protects Congress from judicial scrutiny unless Congress – or either chamber therein – initiates an action with the Court, thus submitting their claim to the wills and whims of the Court and accepting the outcome.
Imagine if Obama had sued the Senate Majority Leader or President Pro Tempore in 2016 to force a vote on Merrick Garland’s nomination to fill the vacancy left when Antonin Scalia passed away. The United States District Court for the District of Columbia, where the lawsuit would’ve most likely initiated, would’ve slapped him down in a heartbeat since the Senate’s power of advice and consent is immune to Court scrutiny.
Which is why we instead got the laughably infuriating idea that “silence is consent” – i.e., the Senate refusing to even entertain Obama’s nomination means the Senate, in effect, rubberstamped it.
And in 2025, Adelita Grijalva and the State of Arizona actually filed a lawsuit against Speaker Mike Johnson to get an injunction ordering him to swear her in. The lawsuit was eventually dismissed as moot since Grijalva was sworn in on November 12, 2025, before the Court could take any kind of action. On which their first and only action would’ve been immediate dismissal.
Because, again, virtually everything Congress does is immune to judicial scrutiny.
And that includes impeachment.
There’s this persistent idea that an impeachment trial acts like a criminal trial, with all the same rules of evidence and procedure as the Federal judiciary, including all the protections of rights and due process that come with it. Dershowitz, quoted above, even called it “quasi-judicial”. And as it acts like a criminal trial, it’s subject to appeal and judicial review.
Conservative commentator Matt Christiansen even plays that up in his video, through which I found the above-linked article:
Christiansen also points out the expungement vote for Andrew Jackson’s censure and says that the House should do the same with Trump’s impeachment.
Except two problems with that. First, saying that the House can “undo” the impeachment after the President has already been acquitted is akin to a prosecutor moving to dismiss an indictment after the defendant has already been acquitted… It’s moot. The House could, however, pass a resolution acknowledging the 2019 impeachment was brought on spurious charges and hearsay, but that’s about the extent of what they can do.
Second, in voting to expunge the censure against Andrew Jackson, the Senate tried to “undo” something that was, by all intents and purposes, not allowed by the Constitution. Impeachment is not unconstitutional.
And the details and evidence backing the impeachment claims are immaterial. No, seriously, they are entirely immaterial.
The House could, provided they mustered up the votes and momentum for it, impeach the President for merely breathing. None of the House’s impeachment power is subject to judicial review. None of the Senate’s power to try impeachments is subject to judicial review. The Supreme Court made that clear in Nixon v. United States, 506 US 224 (1993). And the reason is quite simply to protect from impediment the vacancies and successions that may occur after an impeachment conviction.
As an extreme example, the House and Senate could collude to remove the President, Vice President, or any civil officer (or ALL of them) via impeachment. Passing impeachment articles that say they merely want them out of office, with the Senate also voting to convict so they’re removed. There is nothing in the Constitution stopping that from happening – since “high crimes and misdemeanors” is largely whatever the House wants it to mean. And it can’t be reviewed or reversed by the Courts. And the Constitution makes it clear the President’s pardon power cannot be used to undo an impeachment conviction.
There’s a LOT about the Constitution many get wrong, including “experts”. But a lot of people seem to think an idea you merely pull out of your ass that hasn’t yet had its wash through the Federal judiciary means it’s a viable or even constitutional idea until a Court says otherwise. So everyone on both the left and the right need to stop manufacturing ideas about the Constitution merely to get what they want.
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