Yesterday, February 10, the second impeachment trial of former President Donald Trump began in the United States Senate. The trial is the first of its kind in that a president has never been impeached twice. Also, no president has ever been on trial after his term has ended. This second reason is the crux of Trump’s defense.
Twenty years ago, Michigan State University law professor Brian Kalt wrote a legal analysis on impeachment. In the 78 page defense brief issued by Trump’s lawyers, Kalt’s paper was cited 15 times.
Kalt wrote the analysis because thinking about legal questions is his job; it’s his job to look at the law and analyze it before people have heated opinions on it in a real case.
“There’s a lot of evidence to sift through, the article is very long, and I wanted to figure out what the answer was without knowing, as I would in an actual case, which side I was rooting for. I wanted it to be about the law, not who was on trial,” Kalt said.
The section on impeachment in the Constitution, like much of the document, is intentionally vague. So, Kalt turned to precedent and history, specifically the beginnings of the Constitution itself at the Constitutional convention.
“At the time that the Constitution was written, it was understood that impeaching people who had already left office was part of the picture, it was part of what impeachment was all about,” Kalt said. “They were talking about whether to make the president removable, it was sort of a foregone conclusion that you could impeach him after he was gone, they didn’t talk about it. But the way they phrased their discussion was should he be impeachable while in office.”
Kalt was cited in briefs by both sides of the Senate impeachment trial, but he said he takes issue with the way his article was used as a source against the constitutionality of the trial by Trump’s defense.
“I was disappointed to see how they used it because, as I said, there’s a lot of evidence, there’s plenty on both sides, and they could have picked out a bunch of things from my article, and they didn’t have to cite me for it, I could lead them to the evidence and they could cite that evidence,” Kalt said. “The problem I had was they mischaracterized what I said.”
For instance, the brief cites Kalt quoting James Madison in the Federalist Papers. The brief concludes that Madison was arguing against impeachment after a president has left office and cites Kalt. However, Kalt said in his article that the Madison quote, if taken out of context, would sound like it was against impeachment of former presidents, but that’s not what Madison was arguing.
“They were sort of piggybacking off the credibility of the article rather than just using it to find evidence for them. They were saying ‘Kalt thinks this’ when I said the exact opposite.”
If, say, Stevie Wonder or any other musician doesn’t like how their music is being used in a campaign, they could send their lawyers to remedy the situation. What recourse does a legal scholar have?
“Well in 2021, you can do what I did, which is to tweet about it and the House managers saw that I tweeted about it and they mentioned it. That’s usually the remedy that we have,” Kalt said.
He described the lack of fact checking by the Trump team to check that they weren’t mischaracterizing Kalt’s arguments as “bad lawyering.”
Kalt has also written about impeachment more recently and generally, and said he is worried about this trend in impeachments, where it’s gotten easier to impeach a president, but more difficult to convict. He called these “futile impeachments.”
“I don’t think that’s a good thing, I don’t think that’s helpful. I think they should think of other remedies, for instance censure. People say ‘well you can censure someone, but it doesn't have any consequences.’ Well, neither does impeachment if they get aquitted,” Kalt said. “It was hard for me to watch all day yesterday these arguments and knowing they were talking about things I’ve studied very carefully, and know at the same time it didn’t make any difference.”
This article was written by Stateside production assistant Olive Scott