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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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)
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Education/Learning
Research
Public Policy
International Affairs
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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
Links (1)
News (17)
Explainer: Trump's acts as president are 'fair game' for criminal charges
Reuters online
2021-02-16
Here's an explanation of how Trump's leaving office affects his criminal and civil exposure. Can Trump be prosecuted for acts he engaged in as president? Yes. Now that Trump has left office, any misconduct he engaged in as president is “fair game” for criminal charges, said Brian Kalt, a constitutional law professor at Michigan State University. Trump enjoyed more protection from prosecution while he was president because the U.S. Justice Department has concluded it would be unconstitutional to indict a sitting president. But there is no federal prohibition on charging a former president for acts committed while in office. “The immunity argument is about the timing of the trial; it is generally accepted that ex-presidents can be prosecuted for crimes committed in office,” Kalt said.
Impeachment trial: Democrat says Trump lawyers misrepresented scholar's argument
The New York Times online
2021-02-09
Most legal scholars, including some leading conservatives, agree that a former president can be tried by the Senate even after leaving office — a point Democrats seized upon during their remarks. Representative Joe Neguse of Colorado noted that Brian Kalt, a legal scholar cited repeatedly by Mr. Trump's lawyers, publicly disputed their portrayal of his law journal article on the topic of trying former officials. “They misrepresent what I wrote quite badly,” tweeted Mr. Kalt, a law professor at Michigan State University. “My article presented all of the evidence I found on both sides, so there were lots for them to use fairly. They didn't have to be disingenuous and misleading like this.” Mr. Trump's lawyers cited Mr. Kalt's article 15 times in their impeachment defense brief.
There’s no requirement to tell the public if the 25th Amendment is invoked
The Washington Post online
2021-01-07
This op-ed was written by Brian C. Kalt is professor of law at Michigan State University and the author of "Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment." Section 4 of the amendment allows the vice president and Cabinet to temporarily transfer the president’s powers to the vice president. Several sources reported that Cabinet members were actively discussing invoking Section 4, effectively replacing President Trump with Vice President Pence. Then a more startling suggestion began circulating on Twitter: that Section 4 had already been invoked. If Section 4 is invoked, would we necessarily know? The short answer is yes, probably. But the longer answer is not as simple. The 25th Amendment does not have any sort of formal requirement of transparency.
Does Trump have power to pardon himself? It’s complicated
Associated Press online
2020-12-07
No president has attempted to pardon himself while in office, so if Trump tries to do so in the next six weeks, he will be venturing into legally untested territory without clear guidance from the Constitution or from judges. Legal experts are divided on an inherently ambiguous question that was left vague by the Founding Fathers and has never had to be definitively resolved in court. “You could say, implicit in the definition of a pardon or implicit in the notion of granting a pardon — because the Constitution uses the word ‘grant’ — is that it’s two separate people,” said Brian Kalt, a law professor at Michigan State University. “You can’t grant something to yourself. You can’t pardon yourself.” It could also seem to run afoul of the fundamental principle that no one — in this case, a president issuing himself a pardon — may serve as a judge in his own case.
Could Trump pardon family members and other close associates? His prior pardons may set the stage for more
USA Today online
2020-12-04
As Trump weighs granting additional pardons to close associates – and perhaps family members and even himself – experts said he may not pay much of a political price, no matter whom the recipients are. The number of pardons with a political sheen Trump has signed – along with the unorthodox way he's wielded the power – may have desensitized the public to the issue. The reaction to Flynn's pardon, though muted, underscored that the president's broad clemency powers are increasingly viewed – like much else – along partisan lines: Democrats express outrage, and Trump's supporters cheer. That division, several experts said, may partly explain why some Americans shrug their shoulders. "He has a large and loyal base who will accept his explanation for his actions, which will likely be that he and the people he has pardoned did nothing wrong and need to be protected from the deep state,” said Brian Kalt, a law professor at Michigan State University.
Donald Trump Threatened To Pardon Himself. Is That Even A Thing?
MSN online
2020-11-11
So, the big question... Can Donald Trump pardon himself? In short, the answer is nobody knows. No president has ever had the need to try it. But then, there's never been a president quite like Trump. “When people ask me if a president can pardon himself, my answer is always: ‘Well, he can try,'” Brian Kalt, a constitutional law professor at Michigan State University, told Reuters. “The Constitution does not provide a clear answer on this.” Many legal experts have said that a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case. Kalt said this, in his view, was the stronger argument.
A Presidential Disability Commission Under the 25th Amendment
Bloomberg online
2020-10-15
In the aftermath of President Trump's recent hospitalization, a bill that would create a commission to examine presidential fitness under the 25th Amendment was proposed in the U.S. House. Michigan State University law professor Brian C. Kalt explains how the proposal would work and how it could increase the incentive for a U.S. president to conceal any impairments.
The law is clear about handling presidential illness — but it can get murky fast
Washington Post online
2020-10-02
The news that President Trump has tested positive for the coronavirus is stunning on many levels — personal, electoral and legal. As of now, there is no indication that Trump has symptoms, let alone a severe case. Nevertheless, it is important for the country to understand in advance what the legal picture might be if his condition significantly worsens. The law is mostly clear about how to handle a president who falls seriously ill, but it’s not hard to envision a legal scenario that spins out of control quickly. Op-ed written by Brian C. Kalt, law professor and the Harold Norris faculty scholar at Michigan State University.
Trump to announce Supreme Court nominee
CNN online
2020-09-21
Kayleigh Mcenany is very likely to announce his pick for supreme court justice as early as tomorrow. Joining me now, Brian Kalt, professor of law at Michigan State University. We've brought you here because you have done some fact checking on the timing of this nomination and what the historical context would be. So, were the president to nominate a justice, where does that place it in history? Kalt: It would be the closest to an election, before an election that any president has submitted a nomination. We've had two vacancies open up later than this. Both of those were not acted on until after the election.
The Obscure Constitutional Loophole That 2020 Is Blowing Wide Open
Foreign Policy Online online
2020-08-25
This article was written by Brian Kalt, professor and the Harold Norris faculty scholar at Michigan State University College of Law. When U.S. President Donald Trump tweeted on July 30 his suggestion to delay the presidential election – and questioned whether the November vote's results would be known for “months, or even years” – the response by political experts and observers was both an overreaction and an underreaction. As many quickly pointed out, it takes a lot more than presidential whim to delay an election. The president's and vice president's terms end at noon on Jan. 20 whether their successors have been elected yet or not – and the line-of-succession statute dictates what happens next, putting the speaker of the House of Representatives first in line for the presidency, followed by the president pro tempore of the Senate.
Reminder: The 25th Amendment requires political apocalypse
CNN online
2018-09-07
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.
'The Resistance Inside The Trump Administration': A Constitutional Crisis?
NPR radio
2018-09-06
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
Bloomberg online
2018-09-06
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.
Understanding the 25th Amendment
CNN tv
2017-10-19
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.
What the Arpaio pardon reveals about Trump’s take on the rule of law
PBS Newshour online
2017-08-28
President Trump's Friday night pardon of former Maricopa County Sheriff Joe Arpaio -- convicted of defying a court order to stop targeting undocumented immigrants -- drew swift criticism, even from fellow Republicans. What makes the controversial pardon so noteworthy? John Yang is joined by Brian Kalt of Michigan State University to discuss its significance.
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.”...
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...
Journal Articles (5)
Unconstitutional but entrenched: Putting UOCAVA and voting rights for permanent expatriates on a sound constitutional footing
Brooklyn Law Review2016 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...
Don't kill the candidate: Remedying Congress's failure to use Section 4 of the Twentieth Amendment
Harvard Journal on Legislation2016 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.
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 Review2014 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 Ninth Amendment in Congress
Pepperdine Law Review2012 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.
Pardon me?: The constitutional case against presidential self-pardons
Yale Law Journal2008 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.
