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)
Areas of Expertise (5)
Harold Norris Faculty Scholar (professional)
Awarded by Michigan State University
Crystal Apple Award (professional)
Awarded by MSU College of Education
Yale Law School: J.D. 1997
University of Michigan: A.B., with Highest Distinction 1994
- State Bar of Michigan
- United States Courts of Appeals: District of Columbia Circuit; Sixth Circuit
- Federalist Society
- Life Member, Sixth Circuit Judicial Conference
Reminder: The 25th Amendment requires political apocalypse
What would it take to employ the 25th Amendment? As we've written before, there are a few scenarios that leap to mind (and read these articles by Brian Kalt and David Pozen for some more context) in which the 25th Amendment could be invoked.
What the 25th Amendment says about presidents who are 'unable' to serve
Chicago Tribune online
A stunning, unsigned op-ed in The New York Times reported on Sept. 5 that members of President Donald Trump's Cabinet discussed removing him from power by using the 25th Amendment, but decided against it to avoid causing a "constitutional crisis."
As a law professor who studies the presidency, I have written extensively on the 25th Amendment.
Interest in this form of presidential removal may be high, but evidence suggests it could not be used successfully against Trump at this point.
What is the 25th Amendment?
The U.S. Constitution has always specified that if the president suffers an "inability to discharge" his powers, the vice president takes over. But it supplied no details on how, exactly, this might be done.
The 25th Amendment, added in 1967, defines what happens if a president becomes "unable to discharge the powers and duties of his office."
The president may declare himself unable to do his job and empower the vice president temporarily. Both Ronald Reagan and George W. Bush used this process before being sedated for surgery.
Alternatively, the vice president and a majority of the Cabinet may deem the president "unable to discharge the powers and duties of his office" and transfer power to the vice president. The president may later declare himself able and try to retake power.
But if the vice president and Cabinet object within four days, and are backed by two-thirds majorities in both the House and Senate , the vice president stays in power.
Impeachment and the 25th Amendment
The latter provision, which constitutes Section 4 of the 25th Amendment, is the "complex process for removing the president" referred to by the anonymous New York Times op-ed writer.
Section 4 has never been used. But it was seriously considered once.
In 1987, during a changeover in staff, President Reagan's incoming team was advised to think about using Section 4. Mired in scandal, recovering from surgery and discouraged by Republicans' disastrous results in the 1986 congressional elections, Reagan had become so disengaged that staffers reportedly signed his name to documents he'd never even read.
Reagan soon bounced back, showing himself quite capable of discharging his powers and duties. His new staff dropped any consideration of Section 4.
My understanding is that "unable" means being incapable of wielding power – not using it destructively. When a president misuses his powers, impeachment is the Constitution's designated remedy.
'The Resistance Inside The Trump Administration': A Constitutional Crisis?
Brian Kalt: "I think, as the op-ed writer said, it wouldn't work. It would make things worse. The 25th Amendment, section four in particular, it was designed to make sure that if the president was incapacitated there was someone who could pick up the reins immediately. And they wanted to make sure it wasn't used for presidents who were unfit or who were inept or any of those other things. We already have a process to get rid of presidents who are doing a bad job. This was supposed to not supplant that, so they designed it so that if you tried to use it for that, it wouldn't work."
Why the 25th Amendment Is a Dead End
Even worse: Brian Kalt has floated a true nightmare scenario. As he points out, there’s at least some ambiguity in the text of the 25th about how much of a delay is required between when the president reasserts his ability to serve and the point at which the vice-president and the majority of the cabinet transmit their belief that the disability continues. Trump might claim that he was entitled to the “powers and duties” in the interim, or perhaps even until Congress voted to confirm his inability to govern. In other words, the 25th might give us a period in which two people had at least plausible claims to the office. Now that’s what I’d call a constitutional crisis.
Trump can pardon whomever he wants
“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.
Experts say Trump’s Scooter Libby pardon is “symbolic”
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.”
If Mueller finds evidence of wrongdoing, can he indict Trump?
Christian Science Monitor online
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.
Understanding the 25th Amendment
Law Professor Brian Kalt at Michigan State College games out how difficult implementing the 25th Amendment about fitness for office would be utilized against President Trump.
Trump nominates Neil Gorsuch to Supreme Court
The Detroit News
“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.”...
'The Dead Zone': Is there a perfect place to commit a crime?
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...
MSU prof persists with calls for reform of enforcement loophole
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.”...
MSU Professor discovers a possibility to get away with crime
The State News
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...
There's a section of Yellowstone where you can get away with murder
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...
Can Donald Trump pardon himself? MSU professor says it's complicated
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.
What the Arpaio pardon reveals about Trump’s take on the rule of law
PBS Newshour online
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.
Journal Articles (5)
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...
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.
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.
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.
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.