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A professor of constitutional law, whose work was widely cited by former President Trump’s lawyers in their defense memorandum on impeachment, said his work had been seriously misrepresented.
In a 78-page summary submitted to the US Senate on Monday, Trump’s attorneys rely heavily on the work of Michigan State University professor Brian Calt, author of Seminal matter About the dismissal of a former president. His work has been cited 15 times in Trump’s brief, often in connection with the suggestion that the Senate does not have the authority under the constitution to try an impeached former president.
The problem is that the 2001 Calt Law Review article concluded that the historical evidence, in general, is against Trump’s legal argument.
“The worst part is the three places they said I said something while actually I said the opposite,” said Cult in an interview with NPR.
Trump’s attorneys argue that the Senate lacks jurisdiction because the president is already out of office, making the impeachment trial pointless. Calt says accountability is more than isolation; It is about accountability and deterrence. “The drafters of the constitution were concerned that people would abuse their power to keep themselves in office,” he adds. “The important point is the timing of the behavior, not the timing of legal actions.”
Calt is among more than 170 prominent scholars of the Constitution It officially weighed in on the issueBy telling the Senate that, contrary to what Trump has asserted, it has the authority to try Trump.
There are relatively few scholars on the other side. But among them is Columbia University’s highly respected law professor, Philip Bobbitt. “If you look at the text of the Federalist papers, getting a person out of office … is the goal,” Bobbitt argues.
Those calling for a Senate trial, such as Yale University law professor Achilles Ammar, assert that it makes no sense to allow a president to commit serious crimes in the final weeks or months in office, who is being indicted by the House of Representatives while in office. He is in office, to escape trial by the Senate.
“[Do] You want to give someone a “free out of jail” card at the end of administration so they can do whatever they like and be immune to it. … the Supreme Accountability Court? “.
Although scholars across the political spectrum are increasingly expressing support for the Senate trial, they acknowledge that there are precedents in both directions: in 1797 Senator William Blount was expelled from the Senate and It is still impeached And the Senate tried him after his departure. So was William Belknap, the Secretary of War, who resigned Only 40 minutes Before His indictment in 1876. However, he was still being tried by the Senate. In both cases, the Senate voted that it had the power to conduct a trial, but failed to get the two-thirds vote required for a conviction.
If there is precedent the other way around, it is the case of President Nixon, who resigned rather than facing near-certain accountability in the House and condemnation in the Senate. But after he left office, there was no attempt to revive the impeachment.
There is another legal defense that Trump’s lawyers are pushing hard. They assert that the Senate trial and conviction would be a violation of his rights to freedom of expression. They argue that “the unsupported notion that Mr. Trump was an elected official … who had fewer rights under the First Amendment than anyone else” is “sophistry.” And they claimed that nothing Trump said on or before January 6 was different from what Democratic lawmakers in the House of Representatives had said in urging the protesters that black lives matter.
Not so, says Peter Kessler, the conservative Republican who served as the acting attorney general in the George W. Bush administration.
“The First Amendment’s protection of freedom of expression does not simply apply to accountability,” he says. “This is not a criminal trial aimed at making someone’s speech illegal.” Kessler says Trump is entitled to embrace and express the views he wants. “But he is not entitled to assert the First Amendment’s defense against removal or removal from office … because the founders were particularly concerned about … the ways in which demagogues could become tyrants.”
The distinction between criminal and isolation proceedings is crucial. Take, for example, the inflammatory rhetoric upheld by the Supreme Court (Brandenburg Fifth. Ohio) In 1969 a constitutional protectorate. The speech by the leader of the Ku Klux Klan, replete with threats of “revenge,” called for sending black citizens to Africa and sending American Jews to Israel.
While the Supreme Court overturned the Klan leader’s criminal conviction, Kessler says these same views would nevertheless be the basis for accountability and conviction if said by a boss.
Suppose, as he suggests, that the president just announced publicly: “I intend to use my office for personal gain. I don’t consider myself bound by the constitution.” Kessler notes that these are speech activities. “They are all protected from prosecution, but, of course, any president who has done or said such things can – and should – be removed from office.”
Indeed, if convicted, the worst that could happen is that the Senate, by majority vote, might bar him from future federal office..