Mike Pence Should Not Preside Over Electoral Ballot Count on January 6: He Has an Inextricable Conflict of Interest
January 3, 2021
Vice President Mike Pence has irreconcilable conflicts of interest in presiding over the January 6 Electoral College vote count before a joint session of Congress (Gage Skidmore)
MARK KARLIN, EDITOR OF BUZZFLASH
The Palm Beach Post headlined an article on December 22, “Pence echoes Trump on election loss in West Palm speech to conservative youths”:
Prompted by chants of "four more years," Vice President Mike Pence on Tuesday echoed his President Trump's defiance in the face of re-election defeat — while overlooking the failed challenges to the Nov. 3 results — during a speech to young conservatives gathered in West Palm Beach….
"As our election contest continues, I'll make you a promise," Pence said to loud cheers on the closing day of the Turning Point USA summit. "We're going to keep fighting until every legal vote is counted. We're going to keep fighting until every illegal is thrown out."
He has been steadfast in supporting Donald Trump’s lies about the results, even after the Trump-Pence campaign has lost more than 60 legal cases (including in the Supreme Court) because they could not provide any evidence of voter fraud. The Pence support of Trump’s crushing of democracy and election integrity stands to this day.
Al Gore presided over the Electoral Vote count in 2001 that sealed the transition of power to George W. Bush, but that was well after Gore had conceded the election to Bush after the infamous 5-4 Supreme Court decision that anointed Bush the president. In fact, Gore took his transition of powers responsibilities so professionally, he batted down verbal efforts by Congressional Black Caucus members to object to the Florida slate of Bush electors (no Senate Democrat would sign on with House Reps to contest the Sunshine State electors) and he declared Bush the winner at the end of a relatively brief joint session of Congress, even though he was overseeing his own loss of an election that he likely would have won if there had been a recount.
Even Richard Nixon presided over the Electoral vote count for John F. Kennedy in 1961 without a fuss, even though he was the election loser.
Pence, in contrast, has avowed that Trump’s larcenous accusations of election theft are accurate. This egregious election disinformation disqualifies him from presiding over the counting of electoral ballots on January 6, because he is still personally contesting the election. Forget that he would not sign onto Louis Gohmert’s now rejected lawsuit that would have allowed Pence to choose himself and Trump as the winners, regardless of the popular and electoral vote. The lawsuit was doomed to fail, and lacking a definitive ruling, Pence can claim more leeway.
Forget that some DC journalists have claimed that Pence has tried to instruct Trump that he is bound by the Electoral Count Act of 1887 and the 12th Amendment and can’t disqualify electoral votes certified by December 8 (which is called a “Safe Harbor” date). That can only be done if both the Senate and House vote to object to an individual state’s certified votes after the presiding officer receives a petition from at least one Congressperson and one Senator in writing and the two houses individually convene for two hours and then vote on whether to sustain or reject the certified votes of an individual state. There is no sign yet that Trump is publicly striking out at Pence, so take the punditry with a full tablespoon of salt.
A January 2 Washington Post article, indeed, noted,
Pence is encouraging lawmakers to publicly debate what they see as voting irregularities in key states, said Pence chief of staff Marc Short.
“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….”
“People familiar with the dynamic between the two men [Trump and Pence] said the relationship remains strong.”
Given that it is now likely that all the swing states will be challenged in writing, Pence — were he to preside over the January 6 electoral count (which may extend into January 7 with the likely at least two hour separate chamber discussions and vote on each state being challenged) — would be inextricably conflicted because he is still claiming that he and Trump were denied a victory by baseless claims of fraud.
Indeed, Pence, if he presides over the count on Wednesday would face one of two outcomes:
If after the objections are not accepted by the Joint Session (which they probably won’t be because the Democratic House will sustain the Biden electors, and it is also quite possible that enough GOP Senators will honor the Constitution and support the will of the electorate to create a Senate majority for upholding the actual election outcome), Pence announces Biden the winner with 306 electoral votes, his personal safety and that of his family will be in immediate danger. Trump has invited his brown shirts to Washington on that day, and he will unleash a hellish tweet storm on Pence if he does his Constitutional duties and announces Biden as the winner of a popular vote.
Indeed, the Pence family safety will be threatened for some time. Already the lunatic Trump lawyer Linn Wood has called for Pence to be arrested for treason and “face execution by firing squad” (why is Wood not being arrested by the FBI?) for not having supported Gohmert’s suit. Trump will be piling on Pence as a traitor, lighting gasoline like an arsonist, as his primed and armed followers are ready to take retribution upon Pence.
Furthermore, Pence’s political future in the Republican Party will vanish, including any hopes of a 2024 nomination if Trump doesn’t run. His best alternative under this scenario is to take his family to an “undisclosed location” for at least a couple of months with plenty of guards. (There are some reports that he is going on an overseas trip that evening.)
The other outcome would result if Trump uses multiple pressure points to get Pence to toss out the Biden electoral ballots in the swing states and declares himself and Trump the winners of the 2020 election. This would immediately precipitate a Constitutional crisis and could possibly result in criminal charges against Pence for violating federal law. It would also lead to chaos in Congress and civil unrest in the streets. The lawfully-elected Biden-Harris presidency would seek immediate relief from the Supreme Court, the results of which no one can predict given its 6-3 conservative composition.
There is a precedent for the Vice President not to preside over the opening of the electoral ballots. In 1969, Hubert Humphrey, then Vice President, had been narrowly defeated by Nixon. Humphrey chose not to serve the ministerial function over the electoral count, and Senate President pro tempore Richard Russell, Jr. (D-GA) took his place. Were Pence to admit his conflicts of interest, then the current President pro tempore, Charles Grassley (R-IA), would preside.
It is highly likely that Trump will try to have his Congressional minions push at the edge of the envelope in efforts to sow as much chaos as possible on Wednesday, regardless of federal law. Indeed it would be breaking the law for Pence or Grassley to do anything other than go through the roll call of votes, announce breaks for the swing state challenges, announce the outcome of pro-Trump objections to Biden slates, and then announce the winner of the election: Joe Biden. No debate or votes are allowed in the joint session, but there is no higher authority present to prevent Pence from letting them occur.
The Hill outlined in a December 31st article how the January 6, 1 PM ET, vote should go:
While the Trump die-hards might think the vice president somehow has discretionary authority to declare the Trump-Pence ticket the actual winner of the election, such a notion has no basis in the Constitution or law. It is abundantly clear from both that the vice president’s powers are strictly limited to opening the envelopes from the states alphabetically, then passing the certificates to four tellers (two members from each house and each party.) The tellers read, count and alternate in announcing the results from each state. After each state’s vote totals are announced, the vice president asks whether there are any objections. If at least one member of each house has signed an objection to that state’s vote totals, the two houses immediately withdraw to their respective chambers to debate and vote on the objections. By statute, debate in both houses is limited to two hours, with no member permitted to speak for more than five minutes. When the joint session reconvenes, the secretary of the Senate and clerk of the House announce the vote results of their respective bodies. If the House or Senate (or both) disagree on the validity of an objection, the originally announced count stands, and the announcements of state results resume.
When all the state electoral votes are counted, the vice president announces the vote totals and declares which candidates for president and vice president have received a majority of the electoral votes presented. That constitutes the official declaration of the winners, and the joint meeting is adjourned.
Be reminded, as of now, Trump has noticeably not been lashing out at Pence, but tweeted Christmas Eve that Pence should “act” to stop a Biden victory after meeting with him in the White House just before Trump’s departure to Mar-a-Lago.
Certainly, it is arguable that Grassley would be no less immune than Pence to bullying from Trump and his sycophantic cult in Congress seeking support from the GOP base.
However, think if Pence were a Democratic vice president who was still claiming the election was stolen from him and his president. Would the Republicans allow him or her to preside over the electoral vote counting?
Not on your life.
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