The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the primary arguments made in defense of Donald Trump in anticipation of and during the first day of the second Trump impeachment trial is that it is unconstitutional for the Senate to conduct such a trial after Trump has left office. This position has garnered the support of an overwhelming majority of Senate Republicans and has convinced some commentators as well, even if it is widely rejected by constitutional attorneys and legal scholars across the spectrum.
In making the argument against so-called late impeachments, the Trump defense brief repeatedly cites the work of Professor Brian Kalt on the impeachment of former federal officials. This makes sense because Professor Kalt is the foremost scholar in this area, having written what is widely regarded as the definitive treatment of the subject. The only problem is that the brief misrepresents Professor Kalt's work.
Trump's lawyers focused their attention on the parts of my article that favored their side, and not the parts—including my overall conclusions—that favored late impeachability. Fair enough—their job is to advocate for Trump, not for me. But as I looked more closely at just how they depicted my work, it was clear that there was a problem.
In several places, they cited me as though I had concluded something when in fact I had concluded the opposite. For instance, they said:
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. (Kalt at 66.)
So what did I say on Page 66? In that section, I looked at some different ways to interpret the constitutional text. One such way, which I called "Interpretation #3," was consistent with what Trump's lawyers were citing me for. But after summing up Interpretation #3, I denigrated it, saying that it had "deep flaws." More to the point, one of its flaws was that removal "is not the sole end of impeachment." In other words, I said the exact opposite of the proposition for which they cited me.
This is not an isolated example. Professor Kalt goes on to give several others, demonstrating that this is not a case of an overzealous advocate making a small error in the course of drafting a brief on a tight deadline. It rather appears as a sloppily scurrilous effort to create a false narrative about the relevant legal scholarship.
One more example from Kalt's Slate essay helps make the point. In their brief, Trump's defense team writes:
One legal scholar described the simplicity of Article II's limitation, 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." (Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 20 (2001).)
That's a great, colorful quotation, and I get why they included it. But I never said it. My article did quote the 19th century lawyer who actually said this line, as part of what I called the simple argument against late impeachment. But remember, my article was 124 pages long. If you want to quote me, quote anywhere from the section of the article on why that 19th century lawyer was wrong. Cite me, without a signal, for my argument about how the text is indeed inscrutable. (Several pages later, in a footnote, Trump's lawyers used the same quote again, this time properly attributing it to Jeremiah Black. Black was a lawyer in the 1876 case of ex–Secretary of War William Belknap, in which the Senate voted 37–29 against Black's arguments and in favor of jurisdiction).
It is understandable why Donald Trump's defenders would rather make technical constitutional arguments about the limits of the Senate's authority than try to defend Trump's conduct on the merits, but there is no excuse for such sloppy and dishonest work as contained in their briefing to the Senate.