President Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing about the 2020 Presidential Election Voter Fraud,” followed by these more ominous lines: “Never give up. See everyone in D.C. on January 6th.”
The unmistakable reference is to the day Congress will count the Electoral College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning on the vice president and congressional allies to invalidate the November election by throwing out duly certified votes for Joe Biden.
Mr. Pence thus far has not said he would do anything like that, but his language is worrisome. Last week, he said: “We’re going to keep fighting until every legal vote is counted. We’re going to win Georgia, we’re going to save America,” as a crowd screamed, “Stop the steal.”
And some Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and other politicians filed a frivolous lawsuit, which has multiple fatal flaws in both form and substance, in an attempt to force the vice president to appoint pro-Trump electors.
Mr. Trump himself has criticized virtually everyone’s view of the election, from that of the Supreme Court to the F.B.I. to Senator Mitch McConnell, but he has never attacked Mr. Pence, suggesting he has hopes for the vice president.
But as a matter of constitutional text and history, any effort on Jan. 6 is doomed to fail. It would also be profoundly anti-democratic and unconstitutional.
Both Article II of the Constitution and the 12th Amendment say that the votes of the Electoral College are to be opened by the “president of the Senate,” meaning the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic counts like the one that followed the 1876 election, adds important details. It provides a detailed timeline to tabulate electoral votes, culminating with the final count to take place on Jan. 6, and it delineates the powers of the vice president.
He is to be the “presiding officer” (meaning he is to preserve order and decorum), open the ballot envelopes, provide those results to a group of tellers, call for any objection by members of Congress, announce the results of any votes on objections, and ultimately announce the result of the vote.
Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, “we the people,” not “we, the vice president,” control our destiny.
The drafters of the Electoral Count Act consciously insisted on this weakened role for the vice president. They guarded against any pretense he might have to throw out a particular state’s votes, saying that the vice president must open “all certificates and papers purporting to be” electoral votes. They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state’s slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a “safe harbor” provision and deference to certification by state officials.
In this election, certification is clear. There are no ongoing legal challenges in the states of any merit whatsoever. All challenges have lost, spectacularly and often, in the courts. The states and the electors have spoken their will. Neither Vice President Pence nor the loyal followers of President Trump have a valid basis to contest anything.
To be sure, this structure creates awkwardness, as it forces the vice president to announce the result even when personally unfavorable.
After the close election of 1960, Richard Nixon, as vice president, counted the votes for his opponent, John Kennedy. Al Gore, in perhaps one of the more dramatic moments of our Republic’s short history, counted the votes and reported them in favor of George W. Bush.
Watching Mr. Gore count the votes, shut off all challenges and deliver the presidency to Mr. Bush was a powerful moment in our democracy. By the time he counted the votes, America and the world knew where he stood. And we were all lifted up when Mr. Gore, at the end, asked God to bless the new president and vice president and joined the chamber in applause.
Republican leaders — including Senators McConnell, Roy Blunt and John Thune — have recognized the outcome of the election, despite the president’s wrath. Mr. McConnell put it in clear terms: “The Electoral College has spoken. So today, I want to congratulate President-elect Joe Biden.”
Notably, Mr. Pence has been silent. He has not even acknowledged the historic win by Kamala Harris, the nation’s first female, first African-American and first Asian-American vice president.
He now stands on the edge of history as he begins his most consequential act of leadership. The question for Vice President Pence, as well as other members of Congress, is which side of history he wants to come down on. Can he show the integrity demonstrated by every previous presidential administration? The American people accept a graceful loser, but a sore loser never goes down well in the history books.
We urge Mr. Pence to study our first president. After the Revolutionary War, the artist Benjamin West reported that King George had asked him what General Washington would do now that America was independent. West said that Washington would give up power and go back to farming. King George responded with words to the effect that “if he does that, he will be the greatest man in the world.”
Indeed, Washington did so, surrendering command of the army to Congress and returning to Mount Vernon for years until he was elected president. And he again relinquished power eight years later, even though many would have been happy to keep him president for life. Washington in this way fully realized the American Republic, because there is no Republic without the peaceful transfer of power.
And it’s now up to Mr. Pence to recognize exactly that. Like all those that have come before him, he should count the votes as they have been certified and do everything he can to oppose those who would do otherwise. This is no time for anyone to be a bystander — our Republic is on the line. (This is the article in its entirety.)
About the authors: Mr. Katyal, a law professor at Georgetown, is a former acting solicitor general of the United States. Mr. Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American history and a board member of the New-York Historical Society.
Today, in an article titled "Pence's Choice: Side With the Constitution or His Boss" and subtitled "The vice president will preside on Wednesday when Congress convenes to ratify Joe Biden's victory. President Trump still seems to hold out hope that his loyal No. 2 could change the outcome," the Times has this to say:
WASHINGTON — Speaking to supporters of President Trump on Monday at the Rock Springs Church in Milner, Ga., Vice President Mike Pence implored the crowd to vote in the two runoff elections Tuesday that will determine whether Republicans maintain control of the Senate.
“I am here for one reason and one reason only, and that is that Georgia and America need David Perdue and Kelly Loeffler back in the Republican majority,” Mr. Pence said.
But the crowd had a message for him, too.
“We need you do the right thing Jan. 6!” one supporter cried out. “Stop the steal!” shouted others. The crowd applauded.
If Mr. Pence has tried to skirt Mr. Trump’s efforts to cling to power, his reception in Georgia on Monday served as the latest reminder of the delicate role he will play on Wednesday, when Congress conducts what is typically a ceremonial duty of opening and counting certificates of electoral votes.
As president of the Senate, Mr. Pence is expected to preside over the pro forma certification of the Electoral College vote count in front of a joint session of Congress. It is a constitutionally prescribed, televised moment in which Mr. Pence will name the winner of the 2020 presidential election, Joseph R. Biden Jr.
It is also a moment some of Mr. Pence’s advisers have been bracing themselves for ever since the president lost the election and stepped up his baseless claims of widespread voter fraud. There is no chance of Mr. Pence not being there, people close to him said. Mr. Pence’s aides have told people that they view the vice president’s role as largely ceremonial.
“I know we all have got our doubts about the last election,” Mr. Pence said Monday in Georgia, attempting to assuage Trump supporters. “I want to assure you that I share the concerns of millions of Americans about voting irregularities. I promise you, come this Wednesday, we will have our day in Congress.”
It was not clear, perhaps by design, what he meant. Mr. Pence does not have unilateral power to affect the outcome of Wednesday’s proceedings. But he has carefully tried to look like he is loyally following the president’s lead even as he goes through a process that is expected to end with him reading out a declaration that Mr. Biden is the winner.
After nearly a dozen Republican senators said they plan to object to the certification of the vote on Wednesday, the vice president’s chief of staff, Marc Short, issued a carefully worded statement intended not to anger anyone.
“The vice president welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections and bring forward evidence before the Congress and the American people on Jan. 6,” he said.
The statement, which frustrated senators who say Mr. Trump is trying to thwart democracy, helped to mollify the president, according to one person close to him.
But it was not enough to squash the belief of many Trump supporters — and the president himself — that the vice president could still somehow help overturn the results.
Two people briefed on the discussions said Mr. Trump had directly pressed Mr. Pence to find an alternative to certifying Mr. Biden’s win, such as preventing him from having 270 electoral votes and letting the election be thrown to the House to decide.
In Georgia on Monday night at a rally for Senators David Perdue and Kelly Loeffler, Mr. Trump openly pressured the vice president, saying, “I hope Mike Pence comes through for us, I have to tell you.” He added, “Of course, if he doesn’t come through, I won’t like him as much,” before saying that he really likes Mr. Pence.
On Monday, after Mr. Pence returned from Georgia, the vice president and Mr. Trump were expected to hear a last-minute pitch at the White House from John Eastman, another Trump lawyer. Mr. Pence also met with Senate parliamentarians for hours on Sunday to prepare himself and the president for what he would say while on the Senate floor.
The fact that Mr. Pence’s role is almost entirely scripted by those parliamentarians is not expected to ease a rare moment of tension between himself and the president, who has come to believe Mr. Pence’s role will be akin to that of chief justice, an arbiter who plays a role in the outcome. In reality, it will be more akin to the presenter opening the Academy Award envelope and reading the name of the movie that won Best Picture, with no say in determining the winner.
“President Trump’s real understanding of this process is minimal,” said Scott Reed, a Republican strategist.
Some of Mr. Trump’s other advisers have helped fuel the idea that Mr. Pence could affect the outcome of the election. In an interview with Jeanine Pirro on Fox News on Saturday night, Peter Navarro, a White House trade adviser, claimed inaccurately that Mr. Pence could unilaterally grant a demand by Senator Ted Cruz of Texas and 11 other Republican senators for an “emergency 10-day audit” of the election returns in the states Trump allies are disputing.
On Saturday morning, Mr. Trump called Mr. Pence and expressed “surprise” that the Justice Department had weighed in against a lawsuit filed by Trump supporters, including House members, seeking to expand Mr. Pence’s powers in the process. The suit was dismissed on Friday by a federal judge in Texas whom Mr. Trump had appointed.
One person close to Mr. Pence described Wednesday’s duties as gut-wrenching, saying that he would need to balance the president’s misguided beliefs about government with his own years of preaching deference to the Constitution.
Members of the vice president’s circle expect that Mr. Pence will follow the rules while on the Senate floor and play his ceremonial role as scripted, aides said. But after that, he will have to compensate by showing his fealty to Mr. Trump.
A tentative final foreign trip by Mr. Pence to visit Israel, Bahrain and Belgium was scrapped, while more events to talk up Mr. Trump’s legacy at home are being considered, according to a person familiar with the plans. Aides would not say whether Mr. Pence would attend Mr. Biden’s inauguration.
Pence aides said they expected the vice president to walk through what is expected to happen on Capitol Hill with Mr. Trump before Wednesday, in part to inoculate himself against public criticism in real time.
But even with his practice at managing the president, Republican strategists described Mr. Pence as being in the worst political position of any potential 2024 major Republican presidential candidate. The vice president will be unable to avoid a nationally televised moment when he declares Mr. Biden the winner, potentially disappointing those who believe Mr. Trump was the victor and angering those who think he has the power to change the outcome.
“His best bet is to buck and dodge and make it through without infuriating either side,” said William Kristol, the conservative columnist and prominent “Never Trump” Republican who was chief of staff to Vice President Dan Quayle.
“He has to hope the Trump people are furious at Tom Cotton and anyone else who doesn’t go along,” Mr. Kristol said, referring to Senator Tom Cotton of Arkansas, an ally of the president’s who said he would not join the effort to challenge the Electoral College results. “He has to hope establishment Republicans are furious at Josh Hawley and Ted Cruz. And then he’s the guy who didn’t offend anyone.”
Four years ago, Mr. Pence was facing a difficult re-election for governor of Indiana when Mr. Trump’s advisers at the time saw opportunity in choosing the mild-mannered, silver-haired conservative who was popular among the evangelical voters whose support Mr. Trump needed.
Since then, Mr. Pence has played the role of the president’s relentless defender and — with rare exception — prevented daylight from coming between them.
In an administration that has cycled through four chiefs of staff, four national security advisers and four press secretaries, the vice president’s political calculation has long been that being the unstintingly loyal No. 2 would give him the best shot at inheriting the Trump mantle.
But with just 16 days left in the administration, Mr. Pence is at risk of meeting the fate that he has successfully avoided for four years: being publicly attacked by the president. (This is the article in its entirety.)
I have no admiration for Mike Pence, so I'm enjoying watching him squirm about this. I also like the idea of him being in the worst political position of any potential 2024 major Republican presidential candidate. Someone recently declared that Pence has the charisma of a ream of paper, and I agree. Even without his current between-a-rock-and-a-hard-place quandary, it's hard for me to imagine him getting elected to anything in the future.
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