'I Said The Opposite': Criticism Of Trump's Impeachment Defense Intensifies | Connecticut Public Radio
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'I Said The Opposite': Criticism Of Trump's Impeachment Defense Intensifies

Feb 9, 2021
Originally published on February 10, 2021 2:03 am

A constitutional law professor whose work is cited extensively by former President Donald Trump's lawyers in their impeachment defense brief says his work has been seriously misrepresented.

In a 78-page brief filed in the U.S. Senate on Monday, Trump's lawyers rely heavily on the work of Michigan State University law professor Brian Kalt, author of the seminal article about impeachment of a former president. His work is cited 15 times in the Trump brief, often for the proposition that the Senate does not have the authority under the Constitution to try an impeached former president.

The problem is that Kalt's 2001 book-length law review article concluded that, on balance, the historical evidence is against Trump's legal argument.

"The worst part is the three places where they said I said something, when, in fact, I said the opposite," Kalt said in an interview with NPR.

Trump's lawyers argue that the Senate lacks jurisdiction because Trump is already out of office, making an impeachment trial pointless. Kalt argues that impeachment is about more than removal; it's about accountability and deterrence. "The framers worried about people abusing their power to keep themselves in office," he adds. "The point is the timing of the conduct, not the timing of the legal proceeding."

Kalt is among more than 170 leading constitutional scholars who have formally weighed in on this issue, telling the Senate that contrary to Trump's assertion, it does have the authority to try him.

There are relatively few scholars on the other side. But among them is the highly respected Columbia University law professor Philip Bobbitt. "If you look at the text of the Federalist Papers," Bobbitt argues, "getting the person out of office ... is the object."

Those who argue for the Senate trial, such as Yale University law professor Akhil Amar, contend that it makes no sense to allow a president who commits serious offenses in the final weeks or months in office — and who is impeached by the House of Representatives while he is in office — to escape from a trial by the Senate.

"[Do] you want to give someone a 'get out of jail free' card at the end of the administration so they can do anything they like and be immune from ... the high court of impeachment?" Amar asks.

Even as scholars across the political spectrum are increasingly voicing support for a Senate trial, they acknowledge that there are precedents both ways: In 1797, Sen. William Blount was expelled from the Senate and was still impeached and tried by the Senate after he was gone. So too was William Belknap, secretary of war, who resigned just 40 minutes before his House impeachment in 1876. Nevertheless, he was still tried by the Senate. In both cases, the Senate voted that it had the authority to hold a trial but failed to get the necessary two-thirds vote for conviction.

If there is a precedent the other way, it is the case of former President Richard Nixon, who resigned rather than face almost certain impeachment in the House and conviction in the Senate. But after he left office, there was no attempt to revive the impeachment proceedings.

There is another legal defense that Trump's lawyers are pushing hard. They contend that a Senate trial and conviction would be in violation of his free speech rights. "The unsupported idea that because Mr. Trump was an elected official ... he has fewer rights under the First Amendment than anyone else" is "sophistry," they argue. And they contend that nothing Trump said on Jan. 6 or before was any different from what Democratic members of the House said in urging on Black Lives Matter protesters.

Not so, says Peter Keisler, a conservative Republican who served as acting attorney general in George W. Bush's administration.

"The First Amendment's protection of freedom of speech simply doesn't apply to impeachment," he says. "This isn't a criminal prosecution which seeks to render someone's speech illegal." Trump is entitled to hold whatever opinions he wants and to express them, Keisler says. "But he is not entitled to assert a First Amendment defense against removal or disqualification from office ... because the Founders were in particular worried about ... the ways in which demagogues could become tyrants."

The distinction between a criminal proceeding and an impeachment trial is critical. Take, for example, the incendiary speech that the Supreme Court upheld (Brandenburg v. Ohio) in 1969 as constitutionally protected. The speech, given by a Ku Klux Klan leader and sprinkled with threats of "revengeance," called for Black citizens to be sent to Africa and Jewish Americans to be sent to Israel.

While the Supreme Court threw out the Klan leader's criminal conviction, Keisler says those same opinions would nonetheless be grounds for impeachment and conviction if uttered by a president.

Suppose, he suggests, that a president just announced publicly: "I intend to use my office for personal profit. And I don't regard myself as bound by the Constitution." Those are speech activities, Keisler observes. "They are all protected from prosecution, but, of course, any president who did or said such things could — and should — be removed from office."

Indeed, if convicted, the worst that could happen would be that the Senate, by majority vote, could ban him from future federal office.

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A constitutional law professor whose work is cited extensively by Trump's lawyers and their impeachment defense brief says his work has been seriously misrepresented. NPR's Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The seminal article about impeachment of a former president was written in 2001 by Michigan State University legal scholar Brian Kalt. He is cited 15 times in the Trump brief, often for the proposition that the Senate does not have the authority under the Constitution to try an impeached ex-president. The problem is that Kalt, in his book-length law review article, concluded that on balance, the historical evidence is against the president's argument.

BRIAN KALT: The worst part is the three places where they said I said something, when, in fact, I said the opposite.

TOTENBERG: Kalt argues that impeachment is about more than removal. It's about accountability and deterrence.

KALT: And the framers worried about people abusing their power to keep themselves in office. The point is the timing of the conduct, not the timing of the legal proceedings.

TOTENBERG: Kalt is among more than 170 leading constitutional scholars, liberal and conservative, who have formally weighed in on this issue, telling the Senate that, contrary to Trump's assertion, it does have the authority to try an ex-president. There are relatively few scholars on the other side. The most respected by far is Columbia law professor Philip Bobbitt, co-author of "Impeachment: A Handbook."

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

PHILIP BOBBITT: And if you look at the Federalist Papers, getting the person out of office is the object.

TOTENBERG: But those who argue for the Senate trial contend that it makes no sense to allow a president who commits serious offenses in the final weeks or months in office and who was impeached by the House of Representatives while he is in office to escape Senate trial. Here's Yale law professor Akhil Amar.

AKHIL AMAR: We want to give someone a get-out-of-jail-free card at the end of the administration, so they can do anything they like and be immune from the high court of impeachment?

TOTENBERG: The scholars point to precedents both ways. Former Senator William Blount was expelled from the Senate in 1797 and still impeached and tried afterwards by a Senate that included some of the founders. In 1876, Secretary of War William Belknap, who resigned just minutes before his impeachment, was still tried by the Senate. In both cases, the Senate voted it had the authority to hold a trial but failed to amass the necessary two-thirds vote for conviction.

If there is a precedent the other way, it's President Nixon, who resigned rather than face certain impeachment in the House and conviction in the Senate. But after he left office, there was no attempt to revive the impeachment proceedings. There's another legal defense the Trump lawyers are pushing hard. They contend that a Senate trial and conviction would violate his free speech rights. The unsupported idea that because Mr. Trump was an elected official, he has fewer rights under the First Amendment than anyone else is sophistry, they say, and they contend that nothing Trump said on January 6 or before was any different than what Democratic members of the House said in urging on Black Lives Matter protesters. Not so, says Peter Keisler, a conservative Republican who served as acting attorney general in the George W. Bush administration.

PETER KEISLER: The First Amendment's protection of freedom of speech simply doesn't apply to impeachment. This isn't a criminal prosecution which seeks to render someone's speech illegal.

TOTENBERG: Trump, he says, is entitled to hold whatever opinions he wants and to express them. But he's not entitled to assert a First Amendment defense against removal or disqualification from office. Take, for example, the incendiary speech that the Supreme Court upheld in 1969 as constitutionally protected from prosecution. The speech, given by a Ku Klux Klan leader, called for Black citizens to be sent to Africa and Jewish Americans to be sent to Israel. While the Supreme Court threw out the criminal prosecution, Keisler says those same opinions would nonetheless be grounds for impeachment and conviction if uttered by a president. Suppose, asked Keisler, that a president...

KEISLER: Just announced publicly, I intend to use my office for personal profit, and I don't regard myself as bound by the Constitution. Those are speech activities. Those are all protected from criminal prosecution. But, of course, any president who did or said such things could and should be removed from office.

TOTENBERG: Indeed, if convicted, the worst that could happen to such a president would be that the Senate could, by majority vote, ban him from future federal office. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.