Law prof claims Trump lawyers 'badly' misrepresented his views when citing impeachment article

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A Michigan State University law professor claims that former President Donald Trump’s legal team took him out of context when citing his work in their impeachment trial memorandum.

Trump’s memo extensively cited Professor Brian Kalt’s 2001 article, “The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment.” Kalt said in a Monday Twitter thread that not all of the references accurately presented his views.

“The article favored late impeachability, but it set out all the evidence I found on both sides–lots for them to use,” Kalt said. “But in several places, they misrepresent what I wrote quite badly.”

Kalt went on to provide examples. In some cases, he said, Trump’s attorneys made the “odd” choice to cite him instead of the sources Kalt himself cited. Another “more problematic thing” he noticed, was that “they suggest that I was endorsing an argument when what I actually did was note that argument — and reject it.”

In his Twitter thread, Kalt gave what he called the “worst” instance of this, which he said was in footnote 79 on page 30.

“When a President is no longer in office, the objective of an impeachment ceases,” the memo said, citing page 66 of Kalt’s article.

Kalt posted a screenshot of the relevant portion of his article, including pages 66 and 67. He says that this argument “has textual appeal” and “an admitted degree coherence,” citing Article II Section 4 of the Constitution, which refers to the removal of the “President, Vice President and all civil Officers[.]” He recognizes that by mentioning “Officers,” this would seem not to apply to former officers.

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However, Kalt’s article continues to say that this argument would only be persuasive if removal was the only possible consequence of impeachment. He therefore rejects the argument by saying it is not the only consequence, as “disqualification is possible too.”

Kalt also pointed to page 21 of the document, where footnote 57 discusses how aspects of impeachment, such as the need for a two-thirds majority vote, “are not self-evident,” which is why the framers of the Constitution made it clear that it was needed.

“Late impeachment, so the argument goes, which is also not self-evident,” the footnote continues, “would have also required specification if the Framers wished to include it as a possibility.” The note then cites page 37 of Kalt’s article, pointing to how some states specifically discuss late impeachment in their constitutions.

“Citing me that way, they make it sound like I was making that argument. But I wasn’t. On page 37, I raise that argument as something a critic might say, and then I refute it,” Kalt said in an email to Fox News. Kalt then provided the full passage from his article:

“A critic of late impeachment could argue that things like two-thirds majority requirements are not self-evident, and therefore require specification; and that late impeachment is similarly counterintuitive and also requires specification. Virginia specified late impeachment and not two-thirds majorities; New York specified two-thirds majorities and not late impeachment. But as noted above, the Virginia, Delaware, Pennsylvania, and Vermont formulas made specific reference to late impeachment in the context of limiting it, while using language that suggested that late impeachment was otherwise implicitly permissible. Therefore, allowing late impeachment is the self-evident proposition, not the counterintuitive one, and failure to explicitly bar it while specifying other limitations on the impeachment power is a telling omission.”

“An honest citation would have acknowledged that I was concluding the opposite from the proposition for which they cited me,” Kalt told Fox News.

In a statement to Fox News, Trump attorney David Schoen said Kalt’s article was cited in that situation “simply because he expressly recognized that some make this argument  and explained it nicely in terms of being ‘self-evident.'”

Schoen insisted that there was no intention to misrepresent Kalt’s positions.

“Professor Kalt wrote an excellent piece that, in his own words, set out all of the evidence that he found on both sides. Our brief cited his explanations for the arguments he presented that we agreed with (even if he did not find them ultimately convincing) and not for the ones we did not agree with,” Schoen said. “Ultimately Professor Kalt did not agree with our position, but he did explain it well and we wanted to give him credit for that. Nowhere did we say that he agreed with our views, and I can assure you that it was never our intention to in any way mislead as to Professor Kalt’s position.”

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Kalt did say that his article provided “lots for them to use fairly,” as he “presented all of the evidence I found on both sides. He noted that the House impeachment managers cited him as well.

Trump’s Senate impeachment trial is scheduled to begin Tuesday at 1 p.m. ET.

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