Trump's personal defense lawyer says the president's insistence that Pence reject electoral votes is unconstitutional

  • Jay Sekulow, President Donald Trump's impeachment lawyer and personal defense attorney, said Trump's insistence that Vice President Mike Pence reject the electoral results of several states is unconstitutional.
  • "Some have speculated that the vice president could simply say, 'I'm not going to accept these electors,' that he has the authority to do that under the Constitution. I actually don't think that's what the Constitution has in mind," Sekulow said in an interview.
  • "If that were the case, any vice president could refuse any election," he added. "It's more of ministerial procedural function."
  • Sekulow is one of Trump's most loyal backers and is the latest high-profile conservative figure to come out against the president's impossible crusade to overturn Joe Biden's victory in the 2020 election.
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President Donald Trump's impeachment lawyer and personal defense attorney, Jay Sekulow, said this week that Trump's insistence that Vice President Mike Pence has the power to reject states' electors is not constitutional.

"Some have speculated that the vice president could simply say, 'I'm not going to accept these electors,' that he has the authority to do that under the Constitution. I actually don't think that's what the Constitution has in mind," Sekulow said during his show on Tuesday. 

"If that were the case, any vice president could refuse any election," he added. "It's more of ministerial, procedural function."

Trump has repeatedly claimed that as president of the Senate, Pence can legally refuse to recognize electors from multiple battleground states who certified their 2020 election results for President-elect Joe Biden. A number of congressional Republicans have signed on to Trump's effort and said they intend to challenge Congress' certification of the electoral votes on January 6.

"The Vice President has the power to reject fraudulently chosen electors," Trump tweeted on Tuesday.

But as Sekulow and the vast majority of legal, constitutional, and election experts pointed out, Pence has no such authority.

Instead, the vice president plays a ceremonial role in the certification of electoral votes. He also does not have unilateral authority to overturn the election during Congress' certification process on January 6.

Under the Constitution, Congress finalizes the certification of electoral votes before Inauguration Day. At that time, congressional lawmakers have a legal pathway to object to the certification of states' results. To object to a specific state's electoral votes, at least one lawmaker from each chamber must sign on. Each chamber then separately debates the objection for two hours before holding a vote on the matter. Both the House of Representatives and the Senate must vote to reject a state's electoral votes to nullify them.

Though congressional Republicans in both chambers plan to object to certification in certain states on Wednesday, it will delay but not change the ultimate outcome, because there's virtually no chance that the Democratic-controlled House of Representatives will vote to throw out the electoral votes from the battleground states Republicans plan to challenge. 

Where Pence is concerned, the 12th Amendment stipulates that the president of the Senate — the vice president of the US — "open all the certificates and the votes shall then be counted" during a joint session of Congress. 

"This theory running around that Mike Pence himself can simply declare winner … I just don't see that in the US Constitution," Sekulow said Tuesday. "At the end of the day, we have to abide by the Constitution."

Sekulow is the latest high-profile Republican to come out against Trump's longshot bid to overturn the election results.

According to the Washington Post, 22 Senate Republicans oppose the president's push while 13 support it. Sixteen GOP senators have not indicated a clear position on the matter.

Sekulow's defection, however, is particularly noteworthy given his long history of backing the president's legal efforts.

He signed on to defend Trump after the House of Representatives impeached him for abuse of power and obstruction of Congress over his efforts to strongarm the Ukrainian government into launching politically motivated investigations targeting the Bidens ahead of the 2020 election.

Sekulow also made headlines for pushing a dubious and extraordinarily broad legal theory that the president is absolutely immune from criminal proceedings while in office. According to Sekulow, that meant Trump would not just be immune from indictment but from being investigated, subpoenaed, or being called to testify.

"The president is not to be treated as an ordinary citizen," Sekulow argued before the Supreme Court last year while representing Trump in a case against the Manhattan district attorney's office. "He has responsibilities — he is himself a branch of government. He is the only individual who is a branch of government in the federal system."

"Temporary presidential immunity is constitutionally required by Article II, and accordingly, the supremacy clause defeats any authority the DA has under state law as to the president," he said. The Supreme Court rejected Sekulow's arguments and allowed the Manhattan DA's investigation to move forward.

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