A group led by former President Donald Trump’s longtime attorney Jay Sekulow on Monday submitted a legal analysis arguing that the impeachment trial violates the U.S. Constitution.
The American Center for Law and Justice submitted the 45-page legal memorandum (pdf) to the Senate a day before the trial is expected to begin, urging the upper chamber to reject the article of impeachment against Trump on the grounds that the trial is unconstitutional.
The group argues that a plain text reading of relevant provisions of the Constitution would only allow sitting presidents to be impeached.
They say that this reading of the Constitution is backed up by Chief Justice John Robert’s decision to not preside over the trial. Roberts is required to preside over trials against presidents under Article I, Section 3. The chief justice did not provide the reason for not presiding, but legal scholars surmise that it was likely because Trump is no longer president.
“While not dispositive, the fact that, according to the Senate Democratic Leader, the Chief Justice of the United States was invited to preside over this trial and yet declined to do so, is quite telling,” the group argues.
Instead, Senate Democrats, who hold the majority, have announced that Senate President Pro Tempore Patrick Leahy (D-Vt.) will preside. The group argues that because the Democrats haven’t insisted on Justice Roberts overseeing the trial, they are admitting that “the subject of the trial is ‘non-president.”
“If the text, ‘the President of the United States,’ in the constitutional provision requiring the Chief Justice to preside can refer only to the sitting president, and not to former presidents, then the textual identification of ‘[t]he President’ contained in Article II, Section 4, which makes the President amenable to impeachment in the first place, also excludes anyone other than the sitting President,” they argue.
The House has argued that although Trump has already left office, his conduct stipulated in the charge against him occurred when he was in office.
But the group contended, “this argument does not in any way alter the Constitution’s clear textual identification of ‘the President.'”
The group also refuted the opposition argument that the framers of the Constitution intended to include impeachments of former officials because it was the practice of the British parliament, which provided inspiration to the Founding Fathers.
“But the fact that early states did expressly provide for late impeachment and the fact that the national Constitution did not actually supports the very opposite conclusion,” they said. “The Framers were aware of the practice and, unlike the states that expressly allowed it, they chose not to accept late impeachment.”
They added, “the founders explicitly rejected the British model that allowed Parliament to impeach anyone, even private citizens, except for the King, and so they limited impeachment to certain public officials, including presidents.”
They say that subjecting Trump, who has returned to private citizen life, to impeachment would violate this constitutional principle.
“The Senate only has jurisdiction over the sitting President, and then only to address questions of potential removal and disqualification, remedies which only apply to a current officeholder. The fact that the Senate lacks the constitutional jurisdiction to try this impeachment against a private United States citizen is further evidenced by the very fact that the Chief Justice of the United States has refused to preside. The maneuvering that occurred in the House was unprecedented and unconstitutional,” the group concluded.
Sekulow, who is the group’s chief counsel, previously served as Trump’s impeachment attorney in the former president’s first impeachment trial. He is not representing Trump in the second impeachment trial.
Trump’s legal team is intending to argue the Senate has no jurisdiction to try a former official, that the charge against the 45th president is deficient, that their client was deprived of due process and had his right to free speech violated by the article of impeachment, according a memorandum released by the defense team on Monday.
The Democrat-controlled House on Jan. 13 voted 232–197 to impeach Trump on a single article of impeachment, alleging that the president incited an “insurrection” that they claim resulted in the U.S. Capitol breach on Jan. 6.