SACHA PFEIFFER, HOST:
A constitutional law professor whose work is cited extensively by Trump's lawyers and their impeachment defense brief says his work has been seriously misrepresented. NPR's Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The seminal article about impeachment of a former president was written in 2001 by Michigan State University legal scholar Brian Kalt. He is cited 15 times in the Trump brief, often for the proposition that the Senate does not have the authority under the Constitution to try an impeached ex-president. The problem is that Kalt, in his book-length law review article, concluded that on balance, the historical evidence is against the president's argument.
BRIAN KALT: The worst part is the three places where they said I said something, when, in fact, I said the opposite.
TOTENBERG: Kalt argues that impeachment is about more than removal. It's about accountability and deterrence.
KALT: And the framers worried about people abusing their power to keep themselves in office. The point is the timing of the conduct, not the timing of the legal proceedings.
TOTENBERG: Kalt is among more than 170 leading constitutional scholars, liberal and conservative, who have formally weighed in on this issue, telling the Senate that, contrary to Trump's assertion, it does have the authority to try an ex-president. There are relatively few scholars on the other side. The most respected by far is Columbia law professor Philip Bobbitt, co-author of "Impeachment: A Handbook."
(SOUNDBITE OF ARCHIVED NPR BROADCAST)
PHILIP BOBBITT: And if you look at the Federalist Papers, getting the person out of office is the object.
TOTENBERG: But those who argue for the Senate trial contend that it makes no sense to allow a president who commits serious offenses in the final weeks or months in office and who was impeached by the House of Representatives while he is in office to escape Senate trial. Here's Yale law professor Akhil Amar.
AKHIL AMAR: We want to give someone a get-out-of-jail-free card at the end of the administration, so they can do anything they like and be immune from the high court of impeachment?
TOTENBERG: The scholars point to precedents both ways. Former Senator William Blount was expelled from the Senate in 1797 and still impeached and tried afterwards by a Senate that included some of the founders. In 1876, Secretary of War William Belknap, who resigned just minutes before his impeachment, was still tried by the Senate. In both cases, the Senate voted it had the authority to hold a trial but failed to amass the necessary two-thirds vote for conviction.
If there is a precedent the other way, it's President Nixon, who resigned rather than face certain impeachment in the House and conviction in the Senate. But after he left office, there was no attempt to revive the impeachment proceedings. There's another legal defense the Trump lawyers are pushing hard. They contend that a Senate trial and conviction would violate his free speech rights. The unsupported idea that because Mr. Trump was an elected official, he has fewer rights under the First Amendment than anyone else is sophistry, they say, and they contend that nothing Trump said on January 6 or before was any different than what Democratic members of the House said in urging on Black Lives Matter protesters. Not so, says Peter Keisler, a conservative Republican who served as acting attorney general in the George W. Bush administration.
PETER KEISLER: The First Amendment's protection of freedom of speech simply doesn't apply to impeachment. This isn't a criminal prosecution which seeks to render someone's speech illegal.
TOTENBERG: Trump, he says, is entitled to hold whatever opinions he wants and to express them. But he's not entitled to assert a First Amendment defense against removal or disqualification from office. Take, for example, the incendiary speech that the Supreme Court upheld in 1969 as constitutionally protected from prosecution. The speech, given by a Ku Klux Klan leader, called for Black citizens to be sent to Africa and Jewish Americans to be sent to Israel. While the Supreme Court threw out the criminal prosecution, Keisler says those same opinions would nonetheless be grounds for impeachment and conviction if uttered by a president. Suppose, asked Keisler, that a president...
KEISLER: Just announced publicly, I intend to use my office for personal profit, and I don't regard myself as bound by the Constitution. Those are speech activities. Those are all protected from criminal prosecution. But, of course, any president who did or said such things could and should be removed from office.
TOTENBERG: Indeed, if convicted, the worst that could happen to such a president would be that the Senate could, by majority vote, ban him from future federal office. Nina Totenberg, NPR News, Washington.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.