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Brian Kalt - Michigan State University. East Lansing, MI, US

Brian Kalt Brian Kalt

Professor of Law & Harold Norris Faculty Scholar | Michigan State University

East Lansing, MI, UNITED STATES

Expert in constitutional law of the presidency, presidential pardons, impeachment, succession and the 25th Amendment.

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Publications:

Brian Kalt Publication Brian Kalt Publication

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Videos:

Brian Kalt on The B.S. of A. with Brian Sack Ex-Felons and Jury Duty PART 1

Audio:

Biography

Before coming to MSU College of Law in 2000, Brian Kalt was an associate at the Washington, D.C., office of Sidley Austin. He earned his juris doctor from Yale Law School, where he was an editor on the Yale Law Journal. After law school, he served as a law clerk for the Honorable Danny J. Boggs, U.S. Court of Appeals for the 6th Circuit. Professor Kalt's research focuses on structural constitutional law and juries. At MSU Law, Kalt teaches Tort and Administrative law.

Industry Expertise (6)

Writing and Editing Education/Learning Research Public Policy International Affairs Program Development

Areas of Expertise (5)

Structural Constitutional Law Administrative Law Juries The Bill of Rights Tort Reform

Accomplishments (2)

Harold Norris Faculty Scholar (professional)

Awarded by Michigan State University

Crystal Apple Award (professional)

2011-01-01

Awarded by MSU College of Education

Education (2)

Yale Law School: J.D. 1997

University of Michigan: A.B., with Highest Distinction 1994

Affiliations (4)

  • State Bar of Michigan
  • United States Courts of Appeals: District of Columbia Circuit; Sixth Circuit
  • Federalist Society
  • Life Member, Sixth Circuit Judicial Conference

News (10)

Trump can pardon whomever he wants

Vox  online

2018-04-13

“He can definitely pardon people who haven’t been charged yet,” Brian Kalt, a law professor at Michigan State University and author of Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, told me last July. “And, contrary to a common misconception, it doesn’t require as a legal matter that he say they are guilty.”

By eliminating whatever advantage his staffers and family members would gain through cooperation with Mueller, Trump would protect himself and other aides against incrimination. But he would also deny the people he pardons the ability to invoke the Fifth Amendment, which allows possible future defendants to decline to answer questions under oath that they feel might incriminate them. Because they would be immune from prosecution, they by definition couldn’t incriminate themselves and thus couldn’t plead the Fifth. They would have to testify if subpoenaed.

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Experts say Trump’s Scooter Libby pardon is “symbolic”

Mic  online

2018-04-13

Still, while the Libby pardon raises eyebrows, other legal experts say it is within Trump’s power to pardon whomever he chooses.

“Legally, there’s nothing wrong with pardons that the president just decides themselves,” Brian C. Kalt, a professor at Michigan State University School of Law, said in a statement. “If there’s a problem with them, it’s a political problem.”

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If Mueller finds evidence of wrongdoing, can he indict Trump?

Christian Science Monitor  online

2018-04-05

The debate over a possible presidential indictment is merely a hypothetical question at this point. But it is a question of constitutional magnitude with no settled answer, according to legal experts.

“The question in this case isn’t ‘Should the president be above the law?’ It is ‘What is the law?’ ” says Brian Kalt, a constitutional scholar and law professor at Michigan State University, and author of the book “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.”

“If this case comes up to the Supreme Court, we are not deciding what we think of Trump or what we think about immunity,” he says. “We are deciding what we think the Constitution requires.”

When the president takes office after winning a national election, he becomes the sole head of the executive branch of government. He does not share that authority with anyone else. As Supreme Court Justice Stephen Breyer once observed, the founders sought to establish a chief executive who is “constitutionally indispensable.”

“He is the only person in the government who has that kind of role, where taking him off the job is a big deal,” Professor Kalt says. “Taking the vice president off the job – not a big deal. Taking a Supreme Court justice off the job – not a big deal. Members of Congress, there are hundreds of them, and there are ready replacements.”

But the president is different. “You shouldn’t take the president off the job unless you have a legitimate way of doing it,” Kalt says. “The Constitution sets up that legitimate way by saying: If anyone is going to take him off the job, it will be Congress, through impeachment.

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Trump nominates Neil Gorsuch to Supreme Court

The Detroit News  

2017-01-31

“Gorsuch has stellar credentials and an excellent reputation: smart, collegial, and a good writer,” said Brian Kalt, a Michigan State University law professor. "One might think of him as the classic insider, and thus not the sort of person Trump might favor, but that just goes to show how well-respected he is as a judge.”...

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'The Dead Zone': Is there a perfect place to commit a crime?

KULR News  

2017-01-10

Let's say... Suzie and Sam are hiking in the remote portion of Yellowstone National Park that lies in Idaho. Suzie gets mad at Sam and pushes him off a cliff to his death. She hikes back to the nearest town and tells park rangers what she's done. A paper published by Michigan State University Law Professor Brian Kalt suggests Suzie could get off scot-free...

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MSU prof persists with calls for reform of enforcement loophole

WKAR  

2016-11-03

At that time, Professor Brian Kalt wrote about the loophole in an article for the Georgetown Law Journal called “The Perfect Crime,” and he referred to the swath of land as the “Zone of Death.”...

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MSU Professor discovers a possibility to get away with crime

The State News  

2016-08-31

A loophole discovered by MSU law professor Brian Kalt may be the key to getting away with the perfect crime. A 50 square mile section of the park contains a loophole, because of a conflict in the U.S. Constitution, Kalt said...

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There's a section of Yellowstone where you can get away with murder

VICE  

2016-08-04

The book's premise originates from a 14-page article called "The Perfect Crime" by Michigan State University law professor Brian Kalt. The article describes a judicial no-man's land in the Idaho part of Yellowstone, where a person can commit a crime and get off scot-free due to sloppy jurisdictional boundaries...

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Can Donald Trump pardon himself? MSU professor says it's complicated

MLive  online

2017-07-22

Michigan State University law professor Brian Kalt has been studying and writing about the constitutionality of a presidential self-pardon for more than 20 years.

It's a hypothetical legal question Kalt said he started looking into in law school and has been fascinated with since, even including the topic in his 2012 book "Constitutional Cliffhangers: A Legal Guide for Presidents and their Enemies."

But his work has picked up steam nationally following a Washington Post report that President Donald Trump's lawyers are looking into the president's authority to grant pardons and the limits of former FBI director Robert Mueller's investigation into Russia and any connections with the Trump campaign.

"When I wrote my book, most of the feedback I got was, 'A bunch of this stuff can never happen," Kalt said. "Most of the time no one listens -- people just mainly care about whether their side wins. But sometimes there's this window of opportunity that opens up."

So could President Trump -- or any future president -- grant a self-pardon?

Technically, no one knows, because the question hasn't been brought up in the courts and would only come up if a president went through with it and was challenged, Kalt said.

The main argument for it is that it doesn't specifically say a president can't grant a self-pardon in the Constitution. But the definition of a pardon generally implies it's being bestowed upon someone else, Kalt said, and there's also a question of whether the president could judge his own case.

"If I were a judge and this case came in front of me, I'd say a self-pardon's not valid," Kalt said.

The U.S. Constitution allows presidents to "grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." A presidential pardon covers only federal criminal offenses.

The most well-known presidential pardon came from former President Gerald Ford, who pardoned his predecessor Richard Nixon following his resignation over his involvement in the Watergate scandal.

Read more about Kalt's theories on this topic in his book or in a May 2017 essay he wrote for Foreign Policy.

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What the Arpaio pardon reveals about Trump’s take on the rule of law

PBS Newshour  online

2017-08-28

We take a deeper look at this controversial pardon with Brian Kalt. He’s a Michigan State University law professor and the author of “Constitutional Cliffhangers:

A Legal Guide for Presidents and Their Enemies.”

Mr. Kalt, thank you so much for joining us.

From your perspective as a constitutional scholar and professor of law, what make this pardon so noteworthy?

Well, it’s very unusual for a president to make a pardon this controversial this early in his term.

In recent history, presidents have waited until after the election. After the Ford pardon of Nixon, which probably cost President Ford the election, presidents have been very reluctant to use their pardon power.

And, again, when they have, they have waited until there aren’t really political ramifications for it.

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Journal Articles (5)

Unconstitutional but entrenched: Putting UOCAVA and voting rights for permanent expatriates on a sound constitutional footing Brooklyn Law Review

2016

Eligible voters who have left the United States permanently have the right to vote in federal elections as though they still live at their last stateside address. They need not be residents of their former states, be eligible to vote in state and local elections, or pay any state or local taxes. Federal law—the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)—forces states to let these former residents vote for President, the Senate, and the House this way. There are several constitutional problems with all of this...

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Don't kill the candidate: Remedying Congress's failure to use Section 4 of the Twentieth Amendment Harvard Journal on Legislation

2016

When no presidential candidate wins a majority in the electoral college, the House of Representatives holds a “contingent election” between the top three candidates. Unfortunately, if one of those three candidates should die there is no way to provide a substitute, so the dead candidate’s supporters and party would be disenfranchised.

Section 4 of the Twentieth Amendment, ratified in 1933, addressed this situation; it authorized Congress to legislate a process for substituting a new candidate. But for eighty-three years Congress (along with scholars) has never seriously considered Section 4 — let alone passed legislation under it. This neglect has fostered a dangerous incentive for assassination in the presidential electoral system. In every other stage in the process, dead candidates can be replaced; only here can an assassin eliminate an entire party from consideration in the election. A contingent election would be dramatic enough as it is; without Section 4 legislation, a candidate’s death could turn the election from a drama into a disaster.

Part I of this Article provides context and background on Section 4. Part II considers what Congress should provide if it ever enacts Section 4 legislation and concludes with draft legislation. Part III briefly considers why Congress has failed for so long to use its Section 4 power.

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The application of the disqualification clause to congress: A response to Benjamin Cassady, 'you've got your crook, I've got mine': Why the disqualification clause doesn't (always) disqualify Quinnipiac Law Review

2014

This article is a response to Benjamin Cassady’s recent article, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify. It agrees with Your Crook that disqualification does not apply to election to the House or Senate, and that voters should have as free a hand as the Constitution will allow to elect representatives and senators that others in Congress might find scurrilous. The article focuses, however, on disagreements and distinctions. Part I critiques the nature of the structural claims in Your Crook. Part II examines the importance of the legal-process question: who decides whether a particular person is disqualified from a particular post? Part III looks at other elements of the constitutional structure that Your Crook does not consider. Part IV similarly fleshes out the question of disqualification and the presidency. Finally, Part V takes issue with Mr. Cassady’s application of the term “pardon” to the election of a previously disqualified or expelled person.

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The Ninth Amendment in Congress Pepperdine Law Review

2012

The Ninth Amendment declares that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Scholars have developed a rich literature on the Ninth Amendment, but they have focused nearly exclusively on how courts should treat the amendment’s mysterious unenumerated rights.

Other scholars have generated an even richer body of work on constitutional interpretation outside the courts. These scholars have written persuasively about the role of Congress as an important participant in constitutional debate and development. However, this work has largely ignored the Ninth Amendment.

This article brings these two lines of inquiry together and finds that there are exciting possibilities at their intersection. Part I briefly discusses current thinking about the Ninth Amendment and about constitutional interpretation outside the courts. Part II explores some of the opportunities that the Ninth Amendment opens up for Congress. The simplest is to expand traditional “negative rights,” but the Ninth Amendment can promote other forms of rights as well. Indeed, Congress already creates rights legislatively; the Ninth Amendment can make that process more conscious in ways that better serve the rights in question. Part III refutes three likely criticisms: that these “rights” are really no more than politically popular ideas; that Congress is not really capable of serious deliberation; and that the Ninth Amendment provides inadequate protection for these rights.

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Pardon me?: The constitutional case against presidential self-pardons Yale Law Journal

2008

Can a president pardon himself? President Nixon thought so, and seriously considered it, and the specter of a self-pardon has been raised several times since then. But the answer is unclear.

This note makes the case against the validity of self-pardons, using arguments from the Constitution's history, text, and structure, and from general legal principles.

In brief, the Framers either assumed that self-pardons were invalid or at most failed to consider the issue. The text they wrote does not say anything specific about self-pardons, but their failure to explicitly ban self-pardons cannot be read as a decision to allow them.

Looking at the structure of the Constitution and the government it creates, we find a general distaste for self-dealing and a specific notion of a presidency that is limited in ways that are inconsistent with allowing self-pardons.

Finally, general principles about the rule of law and against self-judging militate strongly in favor of the notion that self-pardons are invalid.

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