Mike Pence reportedly had a difficult conversation with President Donald Trump yesterday. According to "people briefed on the conversation," The New York Times reports, the vice president questioned the president's belief that Pence has the unilateral power to reject electoral votes for President-elect Joe Biden when Congress officially tallies the results today. "Even as he sought to make clear that he does not have the power Mr. Trump seems to think he has," the Times says, "Mr. Pence also indicated to the president that he would keep studying the issue."
That description gives you a sense of the gymnastics required to stay on Trump's good side and avoid alienating his supporters without endorsing his wild claims about the election. Pence, whose presidential aspirations depend on the support of Republicans who still think Trump won the election, has a lot of experience in that area. More than two months after the election, he still has neither conceded nor denied that Biden won.
Consider Pence's stance on the objections that Republican lawmakers plan to lodge against electoral votes for Biden today. Last week, Pence's chief of staff, Marc Short, said the vice president "shares the concerns of millions of Americans about voter fraud and irregularities in the last election." Does Pence think there was enough "voter fraud and irregularities" to change the outcome, as Trump has been insisting for two months? He won't say. Short added that Pence "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. 6th." Does Pence think those efforts will or should succeed? He won't say.
But today, in his role as president of the Senate, Pence will be forced to end this charade. His legally mandated participation in affirming Biden's victory could make all his efforts to placate Trump a useless sacrifice of whatever integrity he had left.
Under the 12th Amendment, Pence's function in today's joint session of Congress is to receive certified election results from the states and "open all the certificates." The amendment adds that "the votes shall then be counted." It does not actually say that it's the vice president who does the counting. The Electoral Count Act of 1887 assigns that role to four "tellers" representing the House and Senate. After tallying the electoral votes, the tellers deliver the results to the vice president, who is then required to "announce" them, declaring the victor. So as much as he might like to do so, Pence cannot avoid recognizing that Biden is the man who will be sworn into office in two weeks.
Last week, Rep. Louie Gohmert (R–Texas), one of the House members who plans to challenge electoral votes for Biden today, filed a federal lawsuit claiming that the ceremonial role assigned to the vice president by the Electoral Count Act is inconsistent with the 12th Amendment. Gohmert argued that the Constitution gives the vice president exclusive, unreviewable authority to decide which electoral votes will be counted. His lawsuit, which named Pence himself as the defendant, was quickly dismissed by a Trump-appointed judge, and the U.S. Court of Appeals for the 5th Circuit upheld that decision on Saturday. But Trump has taken up Gohmert's argument, claiming that Pence has the power to overturn Biden's victory, keeping Trump (and himself) in office.
"I hope Mike Pence comes through for us, I have to tell you," Trump said at a rally in Georgia on Monday. "I hope that our great vice president comes through for us. He's a great guy. Of course, if he doesn't come through, I won't like him quite as much." Yesterday Trump reiterated his hope that Pence will save him, tweeting that "the Vice President has the power to reject fraudulently chosen electors."
Pence's position was already delicate. In response to Gohmert's lawsuit, he argued that the congressman had sued the wrong defendant. "The Vice President is not the proper defendant to this lawsuit," said the response brief filed on Pence's behalf by Acting Assistant Attorney General Jeffrey Bossert Clark, who added:
Plaintiffs' suit seeks to empower the Vice President to unilaterally and unreviewably decide objections to the validity of electoral votes, notwithstanding the Electoral Count Act. Plaintiffs are thus not sufficiently adverse to the legal interests of the Vice President to ground a case or controversy under Article III….To the extent any of these particular plaintiffs have a judicially cognizable claim, it would be against the Senate and the House of Representatives….A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction.
Pence's brief did not address Gohmert's highly implausible constitutional claim. But he can no longer dodge that issue.
Today Republicans in the House, joined by several senators, plan to lodge objections against electoral votes for Biden from Arizona, Georgia and Pennsylvania. The targeted states may also include Michigan, Nevada and Wisconsin. Under the procedures laid out in the Electoral Count Act (the same procedures that Gohmert and Trump claim are unconstitutional), any objection backed by at least one representative and at least one senator will be considered separately by the House and the Senate. Electoral votes can be rejected only by a majority vote of both chambers.
Depending on the number of objections and the amount of debate on each, this process could drag on into late tonight or early tomorrow morning. But the end result is not hard to predict, since the House is controlled by Democrats and enough Republicans in the Senate oppose these challenges to ensure their defeat.
The lengthy, pointless exercise will give Pence plenty of time to "keep studying the issue." Maybe if he squints really hard at the 12th Amendment, he can see the same power that Gohmert and Trump perceive, a power that no one else seems to have noticed in the 217 years since the amendment was ratified.
But probably not. In the end, Pence will be forced to declare Biden the next president of the United States, at which point Trump, being Trump, might very well turn against him, as he has when other loyal allies dared to defy his whims. And if the same Trump fans who still believe Biden stole the election also believe Trump when he says Pence failed him in his hour of need, the vice president may find that all his temporizing and obfuscation accomplished nothing but the obliteration of his reputation for honesty and decency.
Update: Today Pence released a statement confirming what he told Trump about his role in counting electoral votes. "Vesting the Vice President with unilateral authority to decide presidential contests would be entirely antithetical" to the constitutional design, he says. "I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress, and no vice president in American history has ever asserted such authority….It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not."
Predictably, Trump responded by slamming Pence on Twitter: "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!"