Back in 2001, I wrote a long law review article exploring an abstract question: can Congress impeach and try ex-officials for their misconduct in office? The issue of what I labeled “late impeachment” was just a hypothetical back then. It was still only a hypothetical when I wrote a book on weird presidential constitutional issues in 2012, and included a chapter on impeaching ex-presidents. Then last month…well, you know.
When it became clear that Donald Trump’s impeachment trial would not begin until after his term ended, I knew my old work would come in handy for both the House managers and Trump’s lawyers. I had concluded in my article that, on balance, the evidence solidly favored late impeachability. But late impeachment is a complicated issue, with a lot of evidence and arguments on both sides—and my article tried to present all of it (it ended up being 124 pages long).
Sure enough, the House managers cited the article numerous times in their brief. So did Trump’s lawyers in their brief. 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.
Legal citations use something called “signals.” Quote a source directly or say something it directly supports? Cite them without a signal: Kalt at 66. Does the source support your proposition, just not directly? See Kalt at 66. Does the source indirectly support your proposition, by saying something analogous? Cf. Kalt at 66. (I could go on; there are eight more signals.) For Trump’s lawyers to cite me without a signal for something that did not support their proposition—let alone support it directly—was a breach of professional standards.
Next, circling back, I saw a citation to my discussion of the Federalist Papers:
For example, as Professor Brian Kalt details, in multiple places Alexander “Hamilton seemed to believe that removal was a required component of the impeachment penalty, which suggests that he viewed late impeachment as impossible.” (Kalt at 43) In The Federalist No. 39, Madison wrote that the President of the United States is impeachable at any time during his continuance in office. (Kalt at 50, citing The Federalist No. 39, at 397 (James Madison) (Clinton Rossiter ed., 1961). . . .
This was disingenuous. In that part of the article, I wrote about Hamilton’s impeachment proposals to the Convention—proposals that were modified or rejected. And in the next breath I wrote, “On the other hand, Hamilton’s later writings on impeachment in the Federalist Papers—construing the Constitution as actually written and not his own unadopted proposals—can be construed more favorably to late impeachment.”
And the citation to Madison? I thought it was odd for them to cite me citing Madison rather than just citing Madison directly. So what content had I added that supported their proposition? Here’s what I wrote: “Taken out of context, Madison’s statement that the President ‘is impeachable at any time during his continuance in office’ would seem to rule out late impeachment.” Then I explained why, taken in context, it did no such thing. Another breach.
I could go on like this for longer than a Slate article allows, pointing out other errors, omissions, and misrepresentations—as well as a couple of places where their citations were fair—but I’ll give just one more example from the first place they cited me:
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 nineteenth-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 nineteenth-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).
When I worked as a judicial law clerk in the federal court of appeals, part of my job was to read lawyers’ briefs and, when they cited authorities, to check whether the authorities actually said what they claimed. Usually they did, but not always. Brief writing is hard work and errors and omissions are inevitable. So is spin—zealous advocacy usually leads lawyers to squeeze all of the advantage that they can out of the evidence. But when lawyers quote the wrong people and cite sources for the opposite of what those sources actually say, it is never a good sign. Judges hate that. It makes their jobs harder.
How senators feel about it is less clear. While I do not envy Trump’s lawyers, picking up a very complicated case at the last minute, they do have a tremendous advantage. Well before they started writing this brief, it was already apparent that they were going to win their case. There do not seem to be nearly enough senators willing to vote to convict, whatever the brief said. Instead of piggybacking off the credibility of my article, Trump’s lawyers could have cited any one of a number of op-eds and blog posts. I wish they had.
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