Wednesday, December 23, 2020

Can Mike Pence Reelect Trump?


By Joseph Ford Cotto

Trump can still win — in Congress

The odds stretch onto the horizon, the clock runs into the 11th hour, the patience of untold millions have worn thin, and the D.C. establishment is beyond ready for a new president, but Trump may pull out a second term all the same.

As you surely imagine, his only realistic chance of victory has nothing to do with Sidney Powell, Lin Wood, their mythical Kraken, or the Supreme Court hearing another version of Texas’s challenge to the legitimacy of November’s results in fraud-slash-irregularity-plagued swing states. Even though I really admire Texas v. Pennsylvania, and the state Attorney General, Ken Paxton, who brought it, the clock has run out not only on it, but any spinoffs.

Trump’s sole real chance of hanging on for four more years can be found in Congress, which is where the Electoral College’s vote totals will be tallied and certified, beginning at 1:00 PM Eastern Time on January 6.

Many things can happen then. It is certain that the electoral votes from a handful of fraud-friendly states will be thrown into question; which is to say, formally challenged. How does this matter work, exactly? While it is far from the most authoritative of sources, Wikipedia actually provides a great overview of the situation:

Members of Congress can object to any state's vote count, provided (the) objection is presented in writing and is signed by at least one member of each house of Congress. An objection supported by at least one senator and one representative will be followed by the suspension of the joint session and by separate debates and votes in each House of Congress; after both Houses deliberate on the objection, the joint session is resumed.

It is inconceivable that the majority of U.S. House members will back any electoral vote challenge, no matter how strong the challengers’ case may be. This should be no surprise, seeing as Nancy Pelosi is still running the House, reduced as her Democratic majority has become.

In the U.S. Senate, meanwhile, Majority Leader Mitch McConnell has discouraged all of his Republican colleagues from engaging in electoral vote challenges as he believes that any such contest is an inevitable failure, which would in turn depress enthusiasm among Trump’s voter base.

Needless to say, seeing as the electoral votes are considered in a joint congressional session, with one of two legislative bodies under Dem dominance, he is correct. However, even if the numbers among House members were strongly favorable toward the G.O.P., at least a few Republican senators would refuse to discard an entire state’s slate of electors all the same.

Regardless, incoming G.O.P. Senator Tommy Tuberville of Alabama has indicated that he will support a challenge. If David Perdue is reelected in Georgia, he has stated that he is up for the same. His fellow Georgia senator, Kelly Loefller, has not ruled out going down an identical road should she get a full term. Representative Mo Brooks, a GOPer from Alabama, has already vowed to challenge shady states from the House.

This whole thing is sure to become the most public of spectacles.

Although it is certain that most congressmembers will buck all challenges, no matter how substantive, to any electoral votes, this — despite what many in America’s chattering class have to say about the matter — is not the end of the story. Far from it, in fact.

Mike Pence, as the Senate’s president, now enters the picture, and that picture is worth not a thousand, but a million words.

In October, writing for The American Mind, University of California, Berkeley, School of Law Professor (and former Deputy Assistant U.S. Attorney General [under George W. Bush]) John Yoo, as well as University of St. Thomas School of Law Professor (and former Deputy General Counsel of the United States Homeland Security Council [also under Dubya]) Robert Delahunty, related something of keen interest:

Under the 12th Amendment, “the President of the Senate [i.e., the Vice President] shall, in the Presence of the Senate and House of Representatives, open all the certificates [of the electoral votes of the states] and the votes shall then be counted.” Left unclear is who is to “count” the electors’ votes and how their validity is to be determined.

Over the decades, political figures and legal scholars have offered different answers to these constitutional questions. We suggest that the Vice President’s role is not the merely ministerial one of opening the ballots and then handing them over (to whom?) to be counted. Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the Vice President both opens and counts the votes.

The check on error or fraud in the count is that the Vice President’s activities are to be done publicly, “in the presence” of Congress. And if “counting” the electors’ votes is the Vice President’s responsibility, then the inextricably intertwined responsibility for judging the validity of those votes must also be his.

Their article, titled What Happens if No One Wins?, and subtitled, “(t)he Constitution provides for election crises—and its provisions favor Trump,” is essential reading for a time like this, as well as the future, in my humble, non-barrister’s opinion.

Will Pence take advantage of his power under the 12th Amendment? Who is to say he cannot claim that vast fraud and irregularities took place, using Peter Navarro’s 36-page report, The Immaculate Deception, as reason for discarding the official Dem electors? After all, Navarro is hardly some schnook who just fell off the turnip wagon; he simultaneously serves as the Assistant to the President and the Director of Trade and Manufacturing Policy.

Of course, the Electoral Count Act, which specifies how Congress tallies electoral votes, should at least be brought up here, but the Act itself may be unconstitutional, as Yoo and Delahunty argue: “Congress cannot use legislation to dictate how any individual branch of government is to perform its unique duties: Congress could not prescribe how future Senates should conduct an impeachment trial, for example.”

It would be near-impossible to seriously maintain, then, that Pence is violating the law simply because he is following the plain language of the Constitution itself. Needless to mention, a great deal would do exactly that, which, at the very least, would make for some choice free entertainment.

The real question is, will Pence do what the 12th Amendment allows? This seems unlikely on its face, from where I stand, given the Vice President’s genial, non-boat-rocking nature and his probable lack of interest in being forever branded as the man who single-handedly de facto overturned a statute from 1887 (the E.C.A.). That being said, far stranger things have happened.

Ergo, it is outside the realm of probability that Trump will be reelected. No two ways about it — the even-keeled Pence taking radical action is his only serious hope at this sorrowful stage.

All the same, Pence does provide some measure of hope and, no matter how loud the scores of anti-Trumpers raise their voices, the Vice President-slash-Senate President does have the 12th Amendment in his corner.

We shall see what happens.

The above originally appeared at the Cotto News & Culture Report newsletter. Sign up here. Wenzel recommended.


  1. Pathetic. That the so called law of the land cannot even accurately tell us how to count votes is pathetic. That we have to resort to interpretations for such a simple thing is pathetic. That Baby Bush’s torture lawyer hasn’t been shamed into seclusion is pathetic.

  2. Pence should promise to count the electors' votes with the same integrity as the public's votes were counted, and subject to the same post-count scrutiny.

  3. Some history I never knew about past elections: