Reprinted with permission from Alternet
In a legal brief submitted this week, one of the sources cited by former President Donald Trump's impeachment lawyers is a 2001 article by Brian C. Kalt, a University of Michigan law professor. Attorneys Bruce Castor, David Schoen and Michael T. van der Veen use Kalt's article to argue against Trump's second impeachment — and according to a Twitter thread by Kalt, they have taken his arguments out of context "badly."
Kalt's 2001 article dealt with late impeachment. Trump, following the January 6 attack on the U.S. Capitol Building, was impeached late in his presidency for incitement to insurrection — too late, according to his impeachment lawyers. But Kalt, noting that the brief "cites my 2001 article on late impeachment a lot," explains, "The article favored late impeachability, but it set out all the evidence I found on both sides — lots for them to use. But in several places, they misrepresent what I wrote quite badly."
Kalt, in his 2001 article, never reached the conclusion that a late impeachment was unconstitutional. But Castor, Schoen and van der Veen, according to Kalt, strongly suggest he did argue for this conclusion.
One of the "problematic" things about the brief, Kalt tweets, is that Trump's attorneys "suggest that I was endorsing an argument when what I actually did was note that argument — and reject it." And according to Kalt, the brief contains "multiple examples of such flat-out misrepresentations."
For instance, at one point in the brief, Trump's lawyers write:
The only purpose of impeachment is to remove the President, Vice-President, and civil officers from office. When a President is no longer in office, the objective of an impeachment ceases.
The second of these sentences has a footnote, citing the paper by Kalt. But as Kalt pointed out on Twitter, in the very argument Trump's lawyers cited, he actually argued that their view of the Constitution has "deep flaws." He argued that in other cases analogous to impeachment, it makes sense to conclude that punishments and trials can be undertaken for former officeholders. He said that the argument Trump's lawyers make would be plausible if "removal [from office] were the only possible judgment in impeachment cases." Kalt added: "But removal is not the only possible judgment mentioned in the case text; disqualification is possible too."
In other words, because the Constitution allows for an impeachment conviction to bar a president from seeking office again, it makes sense that it would allow for a former president to be tried in the Senate. Kalt argued the exact opposite of what Trump's lawyers claimed.
"Again, my article presented all of the evidence I found on both sides, so there was lots for them to use fairly. They didn't have to be disingenuous and misleading like this," he said. "The House managers' brief cited my article a lot too and, to their credit, did so honestly."
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