This is it. President Donald Trump’s dogged effort to ignore the voters, state election officials, the courts and the Electoral College has come down to his latest wild idea – that he’ll just get Vice President Mike Pence to steal the thing for him.
But it’s not going to happen, even though Pence’s quiet and approving stares at his boss have suggested the kind of blind loyalty Trump prizes.
“I hope that our great vice president – our great vice president, comes through for us,” Trump said at a rally in Georgia on Monday night. “He’s a great guy. Of course, if he doesn’t come through, I won’t like him as much.”
The President doubled down Wednesday morning, after Pence told in him a private meeting Tuesday that he doesn’t have the authority to block the electoral vote certification. “Do it Mike, this is a time for extreme courage!” Trump said in the tweet.
And what the actual heck could Pence do after Trump was defeated at the polls, rejected by the courts, unseated by the Electoral College and denied by members of his own party? The President explained on Twitter on Tuesday.
“The Vice President has the power to reject fraudulently chosen electors,” Trump tweeted.
What the law says
What he’s talking about is the counting of electoral votes during a joint session of Congress that convenes at 1 p.m. ET on Wednesday to accept the votes cast by the Electoral College in December.
Under an 1887 law, Pence will preside over the gathering in his role as president of the Senate. It’s his job to call on a small group of lawmakers known as tellers who will read out the electoral votes sent in by the electors in all 50 states and Washington, DC.
Trump appears to be saying that during this ceremony Pence can unilaterally reject a state’s electoral votes. But just because Trump tweets it does not make it so.
You can read the law here. It’s not the cleanest of language, but it’s pretty clear that only a congressman and senator, together, can object to a state’s electoral votes, and it has to be in writing. There’s nothing in the law about Pence doing anything but calling on tellers and announcing the results.
Any objections – and there could be up to six – lead to a pause in the proceedings while the House and Senate each consider and vote on them. Pence could preside over the Senate during that session. But he can’t vote on anything unless there’s a tie, which he does have the power to break. And given the number of Republicans who have already said they will not support objections to the Electoral College results, there is unlikely to be a tie.
If Pence were to somehow attempt to go rogue, the House and Senate chambers should be able to overturn whatever he does with a vote to appeal the ruling of the chair, former Senate parliamentarian Alan Frumin told CNN’s Ted Barrett – though such a thing has never happened before. (Here are the Senate rules on the subject.)
Frumin added that it would be incumbent on Pence to get a majority of the votes backing his position for his ruling to prevail, an unlikely scenario in the Democratic-controlled House and in the Senate, where at this point most Republicans and all Democrats would oppose such a move.
Where did this idea come from?
The idea that Pence could throw out electoral votes is not new. Rep. Louie Gohmert, the Texas Republican, sued to try to make Pence reject electoral votes. But the suit was thrown out. And so was an appeal.
Pence did not say in court filings if he would entertain the possibility of interfering with the count. But he did say Gohmert’s suit was contradictory.
“(A) suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” Pence said.
“Ironically, Representative Gohmert’s position, if adopted by the Court, would actually deprive him of his opportunity as a Member of the House under the Electoral Count Act to raise objections to the counting of electoral votes, and then to debate and vote on them,” Pence’s filing added.
That we’ve come to this strange place is no surprise since Trump continues to deny his loss and has done everything in his power to reject it. One cringes to think what would happen if the US system were not strong enough to reject his attempted coup. But it is, as will be proven when Pence is forced to declare, once and for all, President-elect Joe Biden’s victory, at some point late Wednesday or early Thursday morning.
This story has been updated with Trump’s Wednesday tweet.