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Brian Kalt Profile picture
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9 Jan, 7 tweets, 3 min read
I try to answer questions (25th amendment, impeachment, pardons) people tweet at me but this week I haven't been able to get to every one.

Here's an FAQ thread-of-threads. Some link my books for more detail, but obviously I'm happy to answer questions on Twitter for free.

1/5
25th AMENDMENT

* 25A4 flowchart:

* What happens if there are acting secretaries?

* If 25A4 isn't used now, what's it even for?

* Where is the bar set for things like this week?thehill.com/opinion/white-…

2/5
25A (cont.)

* Who is in charge while the president contests a 25A4 action?
The VP definitely is: theatlantic.com/ideas/archive/…

IMPEACHMENT

* How can people be impeached if they've already left office?
(links only)

3/5
PARDONS

* Can the president pardon himself?
foreignpolicy.com/2017/05/19/wha…

* What does the "except in cases of impeachment" limit to the pardon power mean?


* Can an acting president pardon people?
Yes. Acting presidents have the full powers of the office.

4/5
I've spent my career thinking about these questions in advance, so when they arise I can answer based on the law—not on whether I like the current president or not. I try to limit my role on Twitter to explainer, not advocate.

I'm happy to answer questions. DMs are open.

5/5
I expect to append additional questions/answers to this thread.

Like this:

* Is a pardon a declaration of guilt?
Not always, and not in any formal, legal sense. This piece explains in more detail, discussing the Burdick case that people often cite: nydailynews.com/opinion/ny-ope…

6/5
* Does a president lose post-presidential benefits (pension, etc.) if impeached and convicted?

Yes, but only if convicted while in office. The law gives benefits to those who either finish their term or resign (specifically, if "service…terminated other than by removal").

7/5

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More from @ProfBrianKalt

Brian Kalt Profile picture
6 Jan
For the "amazing demographic shifts" files:

It looks likely* that of the president, VP, and all 17 people in the line of succession, not one will be a straight white male Protestant.

* Assumes nominees are confirmed and front-runners are picked for Commerce and Labor.

1/3
Biden (Catholic)
Harris (Black/South Asian female)
Pelosi (Catholic female)
Leahy (Catholic)
Blinken (Jewish)
Yellen (Jewish female)
Austin (Black)
Garland (Jewish)
Haaland (Native American Catholic female)
Vilsack (Catholic)
Commerce front-runner Raimondo (Catholic female)

2/3
Labor front-runners Walsh (Catholic) and Su (Chinese female; don't know her religion)
Becerra (Latino Catholic)
Fudge (Black female)
Buttigieg (gay)
Granholm (Catholic female)
Cardona (Latino Catholic)
McDonough (Catholic)
Mayorkas (Latino Jewish)

3/3
Read 4 tweets
Brian Kalt Profile picture
5 Nov 20
The possibility of Biden being president w/ a Republican Senate has prompted many tweets about "acting" Cabinet secretaries. Almost every one I have seen gets two things wrong.

A corrective:

1. Presidents can't just name "anyone they want" as an acting Cabinet secretary...

1/4
Under the FVRA, which would cover most acting secretaries, an acting secretary must be either (1) the "first assistant," i.e., deputy secretary; (2) in some other Senate-confirmed position; or (3) someone who worked in the department for at least 90 days in the last year.

2/4
That significantly confines a new president's choices. For instance, while President Trump waited until April 2017 to get Sonny Perdue confirmed as Secretary of Agriculture, the acting secretary was an Obama holdover: 25-year Department of Agriculture veteran Michael Young.

3/4
Read 4 tweets
Brian Kalt Profile picture
27 Oct 20
With today's chatter about vote-counting processes, declaring winners on Election Day or not, etc., I want to recount a crazy, revealing story from the 2000 election that most people have forgotten about or never knew . . . because it happened in New Mexico and not Florida.

1/7
New Mexico saw about 600,000 votes cast. On election night, Gore led by about 5,000 and the networks initially declared him the winner.

Late Wednesday, a programming error was discovered that had excluded 67,000 votes from totals in Bernalillo County (the biggest county).

2/7
With those ballots counted (along with other missing ones that turned up on Thursday), Bush took a 4-vote lead. His lead grew a bit as counties settled minor discrepancies and re-canvassed.

But on 11/14, a week after election night, there was another dramatic reversal.

3/7
Read 7 tweets
Brian Kalt Profile picture
9 Oct 20
As expected, Speaker Pelosi's 25th Amendment talk today was on introducing the Raskin bill. This would create a bipartisan commission to substitute for the Cabinet in deciding when the president is "unable" under §4.

Tweeters are confused about what this means. Some notes:

1/5
* No one thinks this legislation will pass now. If it does, Trump would surely veto it.

* Legislation like this is provided for in §4. It says that the VP and Cabinet invoke §4, but that Congress can legislate a different body to substitute for the Cabinet in that process.

2/5
* The rest of §4 would still apply: VP would need to sign on before §4 could be invoked. If the president declares he's able, he'd retake power in time unless the commission, VP, and 2/3 of House and Senate agreed he's unable. The commission wouldn't have unilateral power.

3/5
Read 5 tweets
Brian Kalt Profile picture
19 Sep 20
I checked the data on previous Supreme Court vacancies near an election. Here's what I found:

Latest vacancy filled before the election: June 10, filled July 24. This was exceptional, though: Justice Hughes resigned in June after the Republicans nominated him for president.

1/8
That outlier aside, the latest is March 23 (Waite), filled July 20.

6 other vacancies arose later than that. Of those, 5 were only filled after inauguration. The 6th was filled soon after an election in which the president was reelected.

But that's not the whole picture.

2/8
10 vacancies arose during the lame-duck (betw. election and inauguration). Of them:

4—filled after inauguration.
3—filled during the lame-duck after the election kept the president's party in power.
3—filled during the lame-duck after the election shifted party control.

3/8
Read 11 tweets
Brian Kalt Profile picture
11 Jul 20
I see confusion on Twitter about pardons b/c of Roger Stone. Here's a thread—tell a confused friend.

This is for those who
1) didn't think Trump had the power to do this (wrong); or 2) think he shouldn't have it (misses some points).

("Pardon" here means pardon OR commute)

1/7
* "I thought impeached presidents can't pardon anyone"

Impeachment by itself does nothing to a president's powers. Only a conviction affects them. It's all or nothing.

Trump pardoned several people back in February, and Clinton and Johnson pardoned plenty post-impeachment.

2/7
* "I thought impeached presidents can't pardon people for crimes that the impeachment was about"

A widely tweeted column confidently claimed this, and there is an impeachment exception to the pardon power. But the standard interpretation of that exception is that pardons…

3/7
Read 8 tweets

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