Michigan State College of Law prof Brian Kalt says it happened repeatedly in a brief by the former president's team.
Published: 2021-02-09 12:48 pm
Legal scholar chides Trump impeachment defense for misrepresenting his writings

WASHINGTON — A legal scholar who believes former officials can be the subject of impeachment and trial by the Senate said Tuesday that former President Donald Trump's legal team has repeatedly mischaracterized his findings.

Brian Kalt, a professor at Michigan State's College of Law, said that the Trump legal brief submitted to the Senate on Monday "ranges from sloppy to disingenuous" in its citations to his 2001 law review article that concluded the Senate has the authority to impeach former officials.

Kalt's 124-page article spelled out the arguments on both sides of the question.

"There is plenty in there for them to use. The problem was that they did not cite accurately," he told NBC News as the Senate prepared to begin considering the issue.

For example: Page 17 of the Trump brief contains this passage:

One legal scholar described the simplicity of (the Constitution's limit on impeachment), which House Managers try in vain to make seem inscrutable, in this way: "A half-grown boy reads in a newspaper that the President occupies the White House; if he would understand from that that all Ex-Presidents are in it together he would be considered a very unpromising lad." That is the first reason why a former President cannot be impeached: he is not the President anymore.

But that is not Kalt's description. It's a quotation from one of the lawyers for William Belknap, the former secretary of war whose 1876 Senate trial took place after he resigned. Kalt quoted the passage as an example of the kind of argument he rejects.

On page 21 of their brief, the Trump lawyers say Kalt's view is that the requirement for a two-thirds vote to convict is such an exception from the normal practice that the Constitution mentions it explicitly. They suggest that Kalt's position is that putting a former official on trial is also so unusual that if the founders meant to allow it, they would have put that in the Constitution, too.

Brian Kalt, Professor of Law at Michigan State University and The Harold Norris Faculty Scholar.Courtesy Brian Kalt

Kalt actually argued the opposite in his article.

He wrote that the practice was widespread among the early states and in England. "The failure to bar it while specifying other limitations on the impeachment power is a telling admission," he wrote.

The Trump lawyers also say Kalt's article noted that Alexander Hamilton said only a current official could be subject to impeachment, but the article actually said Hamilton's later writings were more favorable to the idea.

The brief also cites a page from Kalt's article as suggesting, "When a president is no longer in office, the objective of an impeachment ceases." But that is not his view. It came from a section in his article where he described the various views on the subject and rejected that one.

Kalt was one of the 170 legal scholars who signed an open letter that said, "The Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents."

He acknowledged Tuesday that writing a legal brief is hard work and that errors sometimes happen.

But, he added, "when lawyers quote the wrong people and cite sources for the opposite of what those sources actually say, it is never a good sign."

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