The former president’s statement is a reminder he didn’t merely want an investigation into baseless claims of widespread voter fraud.
The former president’s statement is a reminder he didn’t merely want an investigation into baseless claims of widespread voter fraud.
W hile tens of millions of normal Americans were watching the NFC Championship Game on Sunday night, former president Donald Trump issued a statement in which he declared that former vice president Mike Pence had the power to overturn the 2020 election and should have done so:
If the Vice President (Mike Pence) had “absolutely no right” to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election? Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!
Where to begin? For starters, Trump is wrong about the Electoral Count Act (which lawmakers are trying to reform in the legislation his statement references). It gives Congress the authority to settle disputes between competing slates of Electoral College votes. However, no state had any legitimate reason to overturn Biden’s victory, and none had sent competing slates of electors.
Trump’s legal advisers also did not argue in the run-up to January 6 last year that the Electoral Count Act gave Pence the authority to reject electoral votes. They argued that Mike Pence should deem the Electoral Count Act unconstitutional, set it aside, and then do one of three things: (1) invalidate electoral votes and declare Trump the winner, (2) invalidate electoral votes and send the election to the House of Representatives, or (3) delay the counting of electoral votes in order to give states more time to investigate baseless claims of widespread voter fraud.
If Congress were to revise the Electoral Count Act and, among other changes, make it explicit that the vice president’s role is purely ceremonial, that would not in any way be a concession that Mike Pence — or Al Gore or Kamala Harris, for that matter — had or has the unilateral authority to “overturn the Election!”
While Trump’s latest statement badly botched the facts, it did serve as a useful reminder that, contrary to some revisionist history, Trump had in fact pressured Pence to reject electoral votes and not simply delay the count.
For example, Trump legal adviser John Eastman declared, in the subhead of a January 18, 2021, essay, that “Vice President Pence was not asked to reject electoral votes.” That article narrowly focused on Eastman’s and Trump’s public remarks on January 6 — in which both Eastman and Trump called on Pence to delay the counting of electoral votes while state legislatures investigated supposed voter fraud — as proof Pence was not asked to invalidate electoral votes outright “when all was said and done.”
A quick review of the timeline makes clear that Pence was pressured — both publicly and privately — to attempt to invalidate the Electoral College votes. As I wrote last October:
On the morning of January 5, the day after Eastman met with Trump and Pence in the White House, President Trump tweeted: “The Vice President has the power to reject fraudulently chosen electors.”
On the evening of January 5, at a meeting between Trump and Pence in the White House, Trump still pushed his view that “Pence could and should throw Biden’s electors out” and let “the House decide the election,” according to Peril.
Pence told Trump that the vice president lacks the power to do anything other than open the envelopes, and Pence’s message to Trump was reported that evening in the New York Times. Trump then issued a statement falsely claiming that he and Pence were actually in “total agreement” on the vice president’s authority: “Our Vice President has several options under the U.S. Constitution. He can decertify the results or send them back to the states for change and certification. He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation.”
As I also reported at the time, a source close to Pence said, “In the last 24 hours or so [before January 6], it became crystal clear finally — even though the vice president had been telling them this for three weeks — it’s finally sunk in he wasn’t going to do that. So, then their position moved to: Well, would you delay it and send it back [to the state legislatures]?”
At the January 6 “Save America Rally” outside the White House, Trump legal adviser Rudy Giuliani continued to argue that Pence could either “decide on the validity of these crooked ballots, or he can send it back to the legislatures,” while Eastman and Trump focused exclusively on the latter proposal.
Pence lacked the legal authority to take either of these actions — delay the counting of the Electoral College vote or unilaterally invalidate electoral votes. Both proposals were radical and gave the mob assembled on January 6, 2021, the false impression that Mike Pence had the power to prevent Joe Biden’s victory. But there is a difference between arguing that the vice president has the near-dictatorial authority to decide presidential elections and arguing that the vice president has unilateral authority to delay the counting of the electoral votes. The former is even more radical than the latter. The historical record and Trump’s latest statement make it plain that Trump pressured Pence to take that more radical route.