Brian C. Kalt

 

On his book Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies

Cover Interview of January 09, 2012

The wide angle

This book came from a combination of two streams.

The first is my interest in constitutional oddities. When I was a law student, we were discussing presidential pardons and I asked the professor (Akhil Reed Amar) whether a president could pardon himself. He said that I should research the question and write it up. I did, and that was my first legal publication. I also wrote something with Professor Amar on prosecuting presidents, and later I looked into the question of impeaching people after they’d left office.

Soon after that, coincidentally, speculation began swirling about President Clinton pardoning himself. Criminal charges against him loomed. Then, on his last day in office, Clinton pardoned Marc Rich and Senator Specter talked about impeaching Clinton even though he had left office. I started to think of these sorts of questions as not just interesting, but also potentially relevant.

The second stream in my professional life emerged out of a very different strand of my scholarship. I formulated a theory under which there is a 50-square-mile swath of Idaho where you can commit crimes with impunity. I wanted to get Congress to fix the loophole, and I thought that I had a good chance—my theory made sense, legally, and it attracted a fair amount of attention in the media and elsewhere.

Two very frustrating things happened, though. The first was that I could not get anyone in Congress to acknowledge me, let alone respond to the problem I had identified. (Eventually they did acknowledge me, after C.J. Box wrote a best-selling novel, Free Fire, that used my theory. They did not, however, take any action.)

The second frustrating thing was that whenever I presented my theory, people would say “they wouldn’t just let criminals go free; they’d find some way to convict them.” My response was that that was not an answer. It was not a legal argument. And yet, when a real case did arise, the trial court rejected my argument by saying—in no more detail than this—that while my reading of the Constitution was literally correct, it couldn’t be right because it would mean letting the defendant go free. Then, the prosecutors kept the defendant from appealing the issue. In other words, the people who said “they’ll find a way” were right. (The loophole is still out there, undeterred by that judge’s cursory consideration, and encouraged by the prosecutors’ apparent fear of an appeal.)

That got me thinking much more deeply about what it really takes for a legal argument to prevail. If I’m writing (as I do in Chapter 4) about a power struggle between the Speaker of the House and the secretary of state, it is not sufficient for me to simply set out the legal arguments and pick the one I think is best. I need to take stock of all of the factors that would affect the outcome, of which the strength of the legal arguments is, at most, one.