An effort to sow weaponized disinformation benefiting former United States president Donald Trump ahead of his second impeachment trial was blunted in early February 2021, when the legal scholar cited by his attorneys publicly debunked their claims.
The 78-page legal brief defending the former president cites a 2001 analysis by Brian Kalt, a law professor at Michigan State University, covering the legal precedent for impeaching federal officials after they leave office.
“Impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term,” the article’s abstract states. “Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him.”
But Trump’s attorneys argued that Kalt’s research actually supported their client, prompting Kalt to refute them on several platforms.
“One odd thing they do is cite me citing other sources instead of just citing those sources,” Kalt wrote on Twitter. “Another more problematic thing: they suggest that I was endorsing an argument when what I actually did was note that argument–and reject it.”
One odd thing they do is cite me citing other sources instead of just citing those sources (e.g., p.17 & n.47). Another more problematic thing: they suggest that I was endorsing an argument when what I actually did was note that argument–and reject it (e.g., p.21 n.57).
— Brian Kalt (@ProfBrianKalt) February 8, 2021
The worst distortion of his views, he added, came on page 30 of the Trump team’s brief:
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 notation for that passage, Kalt wrote, was “Kalt at 66.” In a separate op-ed for Slate published on February 9 2021, he explained how that citation was misleading:
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.
Kalt was also part of a group of around 150 attorneys who signed an open letter arguing that Trump’s latest impeachment was legally sound:
The Constitution’s text and structure, history, and precedent make clear that Congress’s impeachment power permits it to impeach, try, convict, and disqualify former officers, including former presidents. The Senate may take up the House’s article of impeachment against former President Donald J. Trump, conduct a trial, convict him, and disqualify him from holding a future office of the United States.
Hours after Kalt’s op-ed was published, the U.S. Senate voted to put Trump on trial a second time, this time over his role in inciting the January 6 2021 attack on the U.S. Capitol by his supporters that caused five deaths; his defenders argue that Trump bears no responsibility.
In his op-ed, Kalt said that even if they picked up Trump’s case with little time to prepare, his attorneys did have an advantage over the House of Representatives’ impeachment managers.
“Well before they started writing this brief, it was already apparent that they were going to win their case,” Kalt wrote. “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.”