Trump, based on arguments from a fringe set of lawyers and certain White House officials, has argued that instead of simply acting in his constitutionally-prescribed pro forma role, Pence could delay the certification beyond Wednesday and ultimately force the question of who won the election to either the House of Representatives or the Supreme Court.
“Let them sue,” has been the message from the group to Trump, leading him to believe he could again end up at the Supreme Court.
Pence, who had lunch with Trump on Tuesday at the White House, has previously sought to explain his ceremonial role to the President in the hopes of easing pressure on himself in the lead-up to the January 6 joint session of Congress. A person close to him said Tuesday he would “follow the law and Constitution.”
But Trump has appeared undeterred, and on Tuesday made his desires known explicitly on Twitter.
“The Vice President has the power to reject fraudulently chosen electors,” Trump declared falsely, lending credence to an erroneous theory that Pence can overturn the results of the election during Wednesday’s tally of Electoral College votes and again pressuring his top lieutenant to act outside constitutional bounds.
It was a direct message to a vice president whose defining political characteristic remains his unyielding fealty to Trump. How Pence proceeds Wednesday when he presides over the certification of the Electoral College tally could determine his future relationship with the man he has served loyally, even in moments of political peril.
Trump’s Twitter message came the morning after he riled up a crowd of supporters in Georgia using Pence’s upcoming engagement on the Senate floor.
“I hope Mike Pence comes through for us, I have to tell you,” Trump said Monday night during a political rally in Georgia, where his public arm-twisting was met with cheers. “Of course, if he doesn’t come through, I won’t like him as much.”
Fight, fight, fight
Over the past several weeks, Trump has become intensely interested in Pence’s ceremonial role during the certification of the Electoral College. He has raised the matter repeatedly with his vice president and has been “confused” as to why Pence can’t overturn the results of the election on January 6, sources told CNN.
Trump’s lawyers have run him through several options for January 6 in various meetings over the past several days, and the President has eagerly listened and internalized their arguments, people familiar with the matter said. Trump has spent “several hours” each day discussing Wednesday’s proceedings, one official said.
A first option — which the lawyers have told Trump is unlikely to succeed — is that expected objections to the Electoral College brought by Republican lawmakers would lead to so much gridlock that the contest is decided by the House of Representatives. That is viewed as a very remote possibility since the number of senators and representatives currently on board with raising objections is not nearly a majority.
More convincing to Trump has been an argument that after Pence listens to the objections, he refuses to certify electors from the six states that are in dispute: Arizona, Nevada, Pennsylvania, Michigan, Wisconsin and Georgia.
This would fall well outside the role prescribed to Pence, which is to open the certificates from each state and present them to the “tellers” and, at the end of the tally, announce who won. There is also no evidence of widespread voter fraud that would lend credence to the objections.
Decertifying those six states wouldn’t make Trump the winner; instead, because neither of the candidates would meet the 270 vote threshold, Trump’s lawyers believe it would send the question to the House of Representatives. Because each state delegation (as opposed to each member) gets one vote, Trump would presumably prevail.
Pence and White House aides have tried to explain to the President that Pence’s role is more of a formality and he cannot unilaterally reject the Electoral College votes. Pence has walked Trump through his largely procedural role in hopes of downplaying the pressure on him, a strategy that doesn’t appear to have worked given the President explicitly urged him to take action Monday night without saying exactly what he wanted Pence to do.
“He’s a wonderful man and a smart man and a man that I like a lot but he’s going to have a lot to say about it,” Trump said on Monday. “You know one thing with him. You’re going to get straight shots. He’s going to call it straight.”
Recognition of limitations?
While Trump has been pressuring Pence to toss out results from individual states, both publicly and privately, a senior Trump adviser acknowledged to CNN’s Jim Acosta there is a recognition inside what’s left of the Trump campaign that the vice president can only do so much as he presides over the proceedings. Officials inside the campaign and their close allies have spent days debating just how far Pence can go, the adviser said.
Pence is “just as frustrated, just as upset” as Trump, the adviser said. “But the issue is what constitutionally can be done about it.”
Traditionally, the vice president presides over the electoral vote certification, though it’s not a requirement. In 1969, then-Vice President Hubert Humphrey didn’t preside over the process since he had just lost the presidential election to Richard Nixon. The president pro tempore of the Senate presided instead.
One source close to Pence said it is not seen as a good option for Republican Sen. Chuck Grassley — the current president pro tempore — to be there instead of Pence on January 6.
Pence and Trump were seen meeting in the Oval Office on Monday, along with White House chief of staff Mark Meadows and Trump’s daughter Ivanka Trump, before Trump departed for Georgia. According to Giuliani, the pair were set to discuss how they would proceed on January 6.
“That decision has to get made by the President and vice president, and they are actually meeting today and going through all the research — they probably aren’t going to make that decision by sometime tomorrow,” Giuliani said on a podcast hosted by Charlie Kirk, a conservative activist.
On Sunday, Pence met for a lengthy session with the Senate Parliamentarian Elizabeth MacDonough in his office just off the Senate floor. Pence chief of staff Marc Short, who was also in the Capitol and seen at one point going into the office of Senate Majority Leader Mitch McConnell, denied the purpose of the meeting was to find a way to overturn the Electoral College results.
“No,” Short said. “We’re just meeting.”
Asked why he was meeting with the parliamentarian, Short said they are “trying to figure out the exact process.”
Still, procedure and process can hardly inure Pence from the outrage of a President who still believes the election was stolen from him and has been fed conspiracies about the results from a band of fringe advisers.
Even as recently as this weekend, Trump’s trade adviser Peter Navarro claimed on Fox News that Pence had the power to move back Inauguration Day, contradicting the Constitution.
Last month, Trump offered tacit approval for the lawsuit filed by his Republican ally Rep. Louie Gohmert pressuring Pence into overturning the election results and was later disappointed to learn his own Justice Department was asking a judge to reject the suit, according to a person familiar with the matter. Trump and Pence discussed the matter at the end of last week.
Trump for weeks has told associates that he does not believe Pence is fighting hard enough for him. That frustration is partly what led Pence’s chief of staff to issue a statement Saturday night saying he welcomed efforts in Congress to raise objections to the Electoral College, though several noted it seemed carefully worded and did not say he supported the objections outright.
Speaking at his own rally in Georgia on Monday, Pence offered little insight into his thinking about January 6, even as he bolstered Trump’s false claims of voter fraud.
Instead, he kept his remarks vague.
“I know we’ve all got our doubts about the last election,” he said. “I want to assure you, I share the concerns of the millions of Americans about voting irregularity. I promise you, come this Wednesday, we’ll have our day in Congress, we’ll hear the objections, we’ll hear the evidence.”
Pence did not say what happens after.