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Life is getting downright awkward for Vice President Mike Pence.
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Trump and his allies are ramping up pressure on Pence to play a shady role in Trump’s doomed, last-ditch attempt to steal the 2020 election at a key moment on January 6.
That’s the day Pence faces the unhappy task of presiding over the official tally of the Electoral College in Congress—an event that’s set to seal Democratic President-elect Joe Biden’s victory and make Trump wild with rage.
Pence doesn’t have a prayer of actually flipping the result of the election, no matter how much Trumpworld wants him to, legal experts say. His job will be to oversee the joint session of the House and Senate that will officially count the Electoral College votes for president and vice president. In fact, his role is tightly circumscribed by law. But Trump’s allies are undeterred, and want Pence to find a way to only count the votes that Trump likes anyway.
That means Pence, who’s eyeing his own 2024 presidential run, will face the tricky political goal of somehow balancing his devotion to Trump against the law and the Constitution. And he appears destined to disappoint his boss.
“The idea that Pence is going to overturn the election in January is pure fantasy-land nonsense,” said Justin Levitt, an election law expert at Loyola Marymount University.
Rumble Day
Trump’s supporters are attempting to turn January 6 into some kind of Armageddon over his unfounded allegations of voter fraud. That marks a big departure from the way the event normally passes as a major snoozefest.
Technically speaking, there shouldn’t be much to consider: Electoral College delegates have already cast 306 votes for Biden and 232 for Trump.
But a raft of Trump-friendly, self-styled “alternative electors”—from the swing states where the president wrongly claims that victory was stolen from him—have reportedly also been gathering themselves together into an imaginary pro-Trump bloc, even though there’s no legal basis for them to do that.
White House senior advisor Steven Miller laid out this plot on Fox News on December 14. “As we speak, an alternate slate of electors in the contested states is going to vote and we are going to send those results up to Congress,” Miller said.
On January 6, the House and Senate will meet in a joint session to officially receive and count the votes, in what would normally be a sleepy affair.
The rules for counting the ballots leave a clear mechanism for resolving disputes—and one that doesn’t appear to allow Trump’s allies much room for silly stuff.
An objection to the vote-count must be submitted in writing and signed by both a member of the House and a member of the Senate.
In the House, members like arch-Trumpian Rep. Mo Brooks of Alabama are gearing up to launch just such a challenge. In the Senate, the guy to watch is newly-minted GOP Sen. Tommy Tuberville, who Trump has been publicly exhorting on Twitter to throw down for him.
If that happens, the two chambers then retreat to their respective sides of the Capitol building for two hours of debate, and then they each vote on the objection.
The House, which is controlled by Democrats, is sure to shoot down any wild-eyed, pro-Trump objection.
But the Republican-controlled Senate all-but-certainly will too. The Senate simply doesn’t have a majority of hardcore Trump supporters willing to throw out the results of a national election, and moderate GOP senators like Mitt Romney of Utah and Susan Collins of Maine have signaled they’re simply not up for it. So have stalwart conservative senators like John Thune of South Dakota and John Cornyn of Texas.
Even the wily GOP Senate Majority Leader Mitch McConnell, who has publicly acknowledged Biden’s victory, recently warned Republican senators to resist calls to disrupt the count because it would ultimately force the chamber to vote against Trump.
Here’s how Pence comes in
Some Trump supporters are now hoping Pence will use his constitutional role overseeing this process to somehow swing the outcome in Trump’s favor.
Trump reportedly became furious with Pence after watching a Lincoln Project ad that accused Pence of “backing away” from Trump’s “trainwreck” to save his own reputation. The ad closes by saying Pence will put the nail in Trump’s political coffin on January 6.
Trump later retweeted a call for Pence to “act” by refusing to certify the Electoral College results last Wednesday evening.
Pressure is building on Pence from outside the White House, too, in unusual ways, even by the Trump era’s standards.
The Rasmussen polling agency, which has faced accusations of pro-GOP bias, posted a bizarre and controversial series of tweets that suggested Pence could simply not count the Electoral College ballots he didn’t like.
To support that theory, which appears to suggest that the sitting vice president could single-handedly decide the winner of any presidential election, the polling agency cited a quote (supposedly) from the notoriously bloody Soviet dictator Josef Stalin.
The agency later dismissed objections to its Stalin citation with an “LOL” and accused its critics of being the “usual partisan hacks.”
Pence is also facing a lawsuit over his January 6 role. House Republican Louie Gohmert of Texas filed the suit in his home state on Sunday. He’s demanding a federal judge allow Pence to exercise supreme judgement in the vote-counting procedure.
Legal experts have poured scorn on the idea that Pence can exercise this kind of unfettered power to single-handedly decide the next president.
“If the Twelfth Amendment somehow gave the vice president the power to unilaterally throw out electoral votes for the other guy in favor of their own party (and even themselves), one might think that one of them would’ve noticed by now,” tweeted Steven Vladeck, an expert on national security law at the University of Texas at Austin School of Law.
Gohmert’s goofy lawsuit prompted a public rebuke from none other than Alyssa Farrah, who worked for Pence for two years before moving over to become the White House communications director and then resigning on December 4.
“Uh, Guys.. why don’t we focus our efforts on winning back the House in ’22,” Farrah wrote.
Pence Can’t Do It
Unfortunately for Trump, Gohmert, and the Rasmussen polling agency, the vice president’s role in this process is actually feeble, according to Levitt and other election law experts.
“His job is to open the envelopes with the electoral votes,” Levitt said. “He reads the certificates and asks for objections if there are any. But if there are any objections, the law clearly says that the chambers of Congress deal with the objections, not the VP. He’s the ceremonial letter-opener, not a decider.”
That appears to leave Pence with no room to maneuver, no matter how much Trump fans want him to, Levitt said.
“He’s basically got the same role that the presenter has at the Oscars,” Levitt said. “The actor at the mic doesn’t actually decide who wins Best Picture.”
Pence could conceivably find a way to weasel out of the role altogether, though.
The Constitution says that the president of the Senate is supposed to do the job—which is technically Pence. But if Pence isn’t around, the business could be performed by the President pro tempore of the Senate, which would be Sen. Chuck Grassley, a Republican from Iowa.
Given all this mishegoss, it’s little wonder Pence is reportedly planning a trip out of the country—as early as the evening of January 6.
