WASHINGTON — Vice President Mike Pence is resisting pressure from President Donald Trump and his allies to use his constitutional role overseeing the Electoral College count Wednesday to somehow alter its outcome at the last moment.
Pence has said little publicly about how he intends to conduct himself Wednesday. But he has told people in the West Wing privately that he views his role in the process as ceremonial, and that view has not changed, according to a source familiar with the matter, despite weeks of lobbying from Trump and fellow Republicans who falsely claim the election was stolen through voter fraud in multiple states.
Pence has been a loyal partner to Trump throughout their four years in office, and his role as president of the Senate this week pits his legal duties against his allegiance to Trump, who has refused to accept the results of the Nov. 3 presidential election.
Republican and Democratic legal experts agree that Pence’s role at the Electoral College count is procedural, requiring the vice president to open state certifications of their election results.
But Trump and other Republicans are pushing state legislators to open formal fraud investigations in their states, hoping to provide Pence with a justification to assert that there must be a delay in certification of the election.
Trump won 232 Electoral College votes, losing to former Vice President Joe Biden, who won 306.
The chair of the Republican Party of Hawaii circulated a letter Monday, obtained by McClatchy, that called on Pence to “present for certification on January 6, 2021 the legitimate electors” representing only “legally cast votes.” She urged Trump supporters to call the White House and email the vice president with the same message.
That same day a group of lawyers sought to convince Trump and Pence that the vice president has the constitutional authority to intervene in the process.
The pressure campaign spilled into public view when Trump called on his vice president to take action.
“I hope Mike Pence comes through for us. I have to tell you,” Trump said 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.”
Trump was even more blunt on Tuesday, writing in a tweet, “The Vice President has the power to reject fraudulently chosen electors.”
But there are no indications that the pressure campaign is working – and all signs point to Pence performing his duties as scripted by the office of the Senate parliamentarian.
“The Constitution seems to me to imply that he has merely a technical role to read the results and to announce that there have to be debates in the House and the Senate,” said Alan Dershowitz, an emeritus professor at Harvard Law School.
According to the source familiar with the matter, the vice president will rely on guidance from the Senate parliamentarian’s office on how to conduct himself in the role as presiding officer, which the Constitution assigns one simple job: “Open all the certificates.”
Pence last week requested that a federal judge dismiss a lawsuit brought by Texas Republican Rep. Louie Gohmert that sought to assert that the vice president has discretion over the Electoral College vote count.
Dershowitz said that Pence’s opposition to Gohmert’s legal effort signaled that he does not want to challenge his constitutional authority to intervene.
“I don’t think he wants more power. What I think he wants is to be on the president’s side politically, but not on his side constitutionally and legally,” Dershowitz said.
The 12th Amendment of the Constitution outlines the process for certifying Electoral College votes. It states, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
Supporters of the efforts to have Pence delay certification or accept alternative slates of electors say that the amendment allows for the vice president to play an active role in the process. They argue that the Electoral Count Act of 1887, which limited the vice president’s role in the process, could be ruled unconstitutional if challenged.
The effort is separate from Republican Texas Sen. Ted Cruz’s push for Congress to delay certification of the election while a fraud investigation is conducted. Cruz is requesting that fellow lawmakers, not the vice president, force a delay in the vote count.
Lawyers advising the president have outlined the possibilities they see for Pence to act unilaterally.
“State legislatures that are controlled by Republicans that feel that there was sufficient irregularity, illegalities and constitutional transgressions can formally request that the vice president request a delay in the certification of the slates,” said Trump campaign adviser Ken Blackwell, a former Ohio secretary of state. “I think there is a consensus that the 10 days that Senator Cruz and his colleagues are requesting would be a sufficient window for the state legislatures, as well as the Congress, to examine the legitimacy of the challenges.”
The president on Monday sought to force Pence to speak out publicly during a Georgia rally, where Trump said of the vice president and the congressional proceedings, “He’s going to have a lot to say about it.”
“You know, one thing with him – you’re going to get straight shots. He’s going to call it straight,” Trump said.
Club for Growth President David McIntosh, who is a friend of Pence and flew on Air Force One with Trump to Georgia on Monday, said of Trump’s pressure on the vice president, “I know Mike will take that to heart.”
“But he’s also totally committed to the Constitution and what’s his role,” McIntosh told McClatchy. “And that will, in the end, dictate what he decides to do tomorrow.”
Pence’s chief of staff, Marc Short, in a statement cited only the authority of federal lawmakers to raise objections to electors.
“Vice President Pence shares the concerns of millions of Americans about voter fraud and irregularities in the last election,” Short said.“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 January 6th.”
Still, Pence’s silence on the matter has left people close to the White House with the impression that the former congressman and Indiana governor who may want to run for president in the future could be persuaded to intervene.
“It’s very possible that Pence will seek a compromise. If he does nothing it threatens to damage his standing among the Trump supporters that make up most of the GOP base,” said Curt Levey, president of the Committee for Justice.
Lawyers involved in the effort to cause a delay in certification, including attorney John Eastman, were to meet with Trump and Pence on Monday to talk about strategy and parliamentary procedure and hold a dress rehearsal, a source briefed on plans for the meeting said.
The White House declined to comment on the private meeting that followed a Saturday call with state legislators in which Trump participated, along with Eastman, lawyer Rudy Giuliani and Peter Navarro, director of trade and manufacturing policy at the White House. Trump during that call sought to push state legislators to open investigations into election fraud, according to one participant.
In a podcast, Giuliani said that Pence and Trump met Monday to discuss Pence’s options during the Jan. 6 proceedings, including whether Pence can accept rival electors in states in which the president has alleged fraud or throw those states’ electoral results out altogether.
“The president will make this decision based on his judgment and the advice that he gets on what the Constitution demands,” Giuliani told Turning Point USA founder and conservative activist Charlie Kirk.
In Wednesday’s joint session of Congress, Pence will open the Electoral College certificates of each state in alphabetical order, which will be read aloud one at a time by “tellers” from the House and Senate.
Members of Congress are then offered an opportunity to object on any grounds, and federal law outlines how those objections are considered.
Formal consideration of an objection requires it be in writing and signed by at least one member of the House and Senate. That triggers two-hour debates in both chambers, followed by House and Senate votes on whether to sustain the objection.
An objection would be sustained by a simple majority in both chambers. But with the House in Democratic control, and with only about a dozen Senate Republicans publicly supporting Trump’s calls to protest the outcome, there is no viable path for the objections to succeed.
Although objections to the results in multiple states could make for a tense day of political theater, the final count is inevitable, and Pence’s scripted role offers him no discretion or power to alter the outcome, legal experts said.
“His responsibility is to open the certificates and call for objections in writing, signed by at least one senator and one congressperson,” said Norm Eisen, counsel for House Democrats during the impeachment of Trump. “He cannot delay or do any other mischief, as I am sure the parliamentarian would rule and a majority of both houses uphold.”
Giuliani said Monday that lawmakers would object to “at least six, could be 10” and possibly more states during the debate, including Arizona, Pennsylvania, Michigan, Wisconsin, Georgia and Nevada.
“The Constitution is being tested here,” Dershowitz said of the effort. “But I think in the end it will endure, and it will survive, and it will not change the outcome of the election.”
