January 6 Committee Reminds Us One Time Mike Pence Did Right Thing. Once.
The House January 6 Select Committee is asking a lot of us this week, as we read their final report and write it up so you can spend this holiday blissfully hungover, or back at work, or doing literally anything else. Yesterday they asked us to accept the conceit that Bill Barr and his henchmen at the DOJ were heroes who resisted their demented overlord's attempt to do a coup — after going along with every filthy racist and corrupt thing he did for four straight years. And today they're asking us to treat Mike Pence as a great leader, who saved the Republic. Well, it's a lot.
Episode One: January 6 Report Is Real, And It's Spectacular
Episode Two: January 6 Report: Trump Tried To Crime Boss State Legislators Into Stealing Election
Episode Three: The Fake Electors Plot As Basically Written By The Coen Brothers, Woodchipper Included
Episode Four: Trump Lawyers Tripped Jeff Clark As He Was Stumbling Backwards Into A Coup. Demand Medal Of Honor, Please.
But we knew that we'd have to play along with this game of Not All Republicans when we accepted the Editrix's assignment to read the committee report, so, fine, let's do this. Time for Chapter 5, "A Coup in Search of a Legal Theory," starring that great patriot Vice President Michael R. Pence. (Hurl! Swallow! Repeat!)
On the morning of January 6, 2021, Vice President Michael R. Pence gathered his staff to pray. Vice President Pence and his closest advisors knew the day ahead “would be a challenging one.” They asked God for “guidance and wisdom” in the hours to come. No Republican had been more loyal to President Donald J. Trump throughout his turbulent presidency than Vice President Pence. The Vice President rarely, if ever, criticized his boss. But as January 6th approached, President Trump turned on his own Vice President.
Help Me Drink GIF by Searchlight PicturesGiphy
The story picks up in late December, after Trump's efforts to overturn his humiliating election loss had failed in the courts, with state elections officials, with state legislators, and even with his own Justice Department. A bunch of lawyers and non-lawyers in his orbit were barfing out batshit memos insisting that actually the vice president had the right to unilaterally reject electoral votes and throw the election to Trump. This was utter gobbledygook, as even Coups 4 Dummies lawyer John Eastman had acknowledged in correspondence in October of 2020, writing, “The 12th Amendment only says that the President of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted. 3 USC § 12 says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the President of the Senate gets to make the determination on his own. § 15 doesn’t, either.”
But after Trump's electoral loss, Eastman changed his tune, churning out memos suggesting that Pence should either (1) reject all the supposedly contested swing state electors outright, reducing the total votes needed from 538 and giving Trump the presidency; (2) point to the cosplay electors and say he couldn't tell which group was legitimate, punting to the House to decide, where each state delegation would get one vote, and the Republican majority would ensure Trump's reelection; or (3) call for a five or ten day pause during which swing state legislatures would be given the opportunity to reconvene and steal Joe Biden's electoral votes for Trump.
The entire White House Counsel's Office, as well as the Justice Department and even the Trump campaign's "real" lawyers, said this was total bullshit. And yet Trump still made Pence sit down and listen to Eastman's nattering for the entire week leading up to the election certification on January 6, 2021. Here's how the committee described a meeting on January 4:
First, the Vice President could unilaterally reject the certified electors from several States won by former Vice President Biden, thereby handing the presidency to President Trump. Or, according to Eastman, Vice President Pence could delay the joint session to give State legislatures the opportunity to certify new electors loyal to the President. Eastman admitted, in front of the president, that both options violated the Electoral Count Act of 1887, the statute that sets forth the process for counting and disputing electoral votes during the joint session. Eastman admitted as much in a subsequent conversation with the Vice President’s staff as well. Therefore, President Trump knew, or should have known, that this scheme was illegal—in fact, it violated the Electoral Count Act and the U.S. Constitution. President Trump repeatedly demanded that Vice President Pence go through with it anyway.
Eastman even wanted Mitch McConnell to “demand normal rules (which includes the filibuster),” insisting that “we should not allow the Electoral Count Act constraint on debate to control.” In plain English, the Electoral Count Act allowed for two hours of debate if there were objections to any state's electoral slate supported by a member of both the House and the Senate, and Eastman wanted Republicans to demand 60 votes to return to joint session and continue the certification. His plan was to create a “stalemate,” thereby giving “the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.”
It is hard to state how ridiculous this idea was. For one thing, while individual legislators were down to coup, no controlling portion of any state legislature had expressed willingness to do what Eastman wanted them to do — although that didn't stop Trump, Eastman, and Giuliani from falsely claiming in public that they had numerous legislatures champing at the bit to steal electoral votes. Zero reputable lawyers endorsed any part of Eastman's plot, and even he admitted that the Supreme Court would probably reject it 9-0. Indeed, US District Judge David Carter refused many of Eastman's privilege claims in the fight over his emails because the lawyer made clear that they wanted to stay far away from any court where a likely ruling against them would blow their whole stupid coup out of the water.
And so it fell to nutjobs like Rudy Giuliani and that weirdo lawyer Kenneth Chesebro to polishing those turds up with a patina of legal mumbo jumbo:
On December 13, 2020, Kenneth Chesebro, a pro-Trump lawyer, sent a memo to Rudolph Giuliani, the President’s lead outside counsel, upon request from Trump Campaign official Boris Epshteyn. Chesebro laid out a “'President of the Senate’ strategy,” arguing that the “President of the Senate” (“he, and he alone”) is charged with “making judgments about what to do if there are conflicting votes.” Chesebro argued that when the joint session met on January 6th, the President of the Senate should not count Arizona’s electoral college votes for former Vice President Biden, “[b]ecause there are two slates of votes.”
Of course, there were not two legitimate “slates of votes” from Arizona. There were the official electors, certified by the State, and a group of fake electors convened by the Trump campaign.
Which reeks less than campaign "lawyer" Jenna Ellis's plan for Pence to simply refuse to open the swing state envelopes.
In fact, Trump and Meadows were so desperate for someone — anyone! — to tell them their coup plot was legal that they tasked Trump's former body man "Hot" Johnny McEntee with researching it, to hilarious effect. In December, Trump and Meadows told McEntee, the 30-year-old whom he'd made head of the Presidential Personnel Office in order to conduct an ideological purge of staff who were insufficiently MAGA, to give them his thoughts on the whole Pence electors thing. No, McEntee's not a lawyer, but he was a quarterback at UConn, so obviously he felt comfortable opining that “the VP has substantial discretion to address issues with the electoral process.”
This wasn’t the only one-page analysis drafted by McEntee before January 6th. He later proposed a “middle path” in which he envisioned the Vice President accepting only half the electoral votes from six disputed States (specifically, Wisconsin, Michigan, Pennsylvania, Georgia, Arizona and Nevada). McEntee portrayed this as a way to avoid “disenfranchis-[ing]” States while still achieving the desired result: delivering a second term to President Trump. McEntee conveyed this memo to the President with a cover note reading, “This is probably our only realistic option because it would give Pence an out.” McEntee told the Select Committee that this judgment was based on his assessment that “it was, like, pretty obvious [the Vice President] wasn’t going to just reject . . . the electors or whatever was being asked of him at that time.”
Naturally this sent us to the transcript to learn more about McEntee's interview with the committee, and, friends, it did not disappoint. The whole thing is gonzo, with that dingbat confessing to all kinds of impropriety and corruption, as his hapless lawyer howls that the questions don't pertain to the matter at hand. But this exchange is the lord's holy perfection:
STAFF COUNSEL: Do you know what the reaction [to your memo] was from the White House counsel?
McENTEE: Yeah, I remember [Pat] Philbin just bringing up something about the FEC rule now that kind of changed the way, that made the, like, Pence's role more like perfunctory or something.
STAFF COUNSEL: Okay. But was it the Electoral Count Act?
McENTEE: Okay. I think it could have been, yeah.
STAFF COUNSEL: Okay. And had you looked at the Electoral Count Act in the course of your research on the Thomas Jefferson memo?
McENTEE: Yeah, I think we even made a footnote of it.
Federal Election Commission? Electoral Count Act of 1878? Same difference.
In the event, McEntee's memos didn't even merit being tossed in Mark Meadows's document-pyre fireplace: "Note that the Select Committee received both documents from the National Archives in a format consistent with the documents having been torn apart and taped back together."
Meanwhile, craven operators like Steve Bannon were pumping out a flood of bullshit, convincing millions of Americans that the power was in Pence's hands and exhorting his audience to descend on DC.
Everyone in Trump's orbit knew that Pence was never going to do what they wanted, no matter how many people showed up in the streets for a "protest." And yet they worked hard all the way up through January 6 to keep the illusion alive with Trump's rabid followers.
On January 5, after the New York Times reported that Pence was refusing Trump's pressure to reject the electors, Trump had Jason Miller put out a statement from the campaign calling it “fake news” and claiming that he and Pence were “in total agreement that the Vice President has the power to act.” And Trump used his Twitter account on January 6 itself to perpetuate the lie:
At 1:00 a.m. on January 6th, President Trump tweeted:
If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they 5 made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!
Later that morning, at 8:17 a.m., President Trump tweeted again:
States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!
And that wasn't the only lie they fed the raging mob. Trump, Giuliani, and Eastman all told the crowd assembled on the Ellipse that there were state legislators ready and willing to overturn the vote, which there were not.
Giuliani recognized Eastman who joined him on stage, claiming that he was “one of the preeminent constitutional scholars in the United States.”
Giuliani said Vice President Pence could either “decide on the validity of these crooked ballots, or he can send it back to the legislat[ures], give them five to 10 days to finally finish the work.” He added that that they had “letters from five legislat[ures] begging us to do that.” This was not true. At most, what Giuliani, Eastman and other allies of President Trump had managed to procure were letters from individual State legislators or groups of State legislators. None of the letters came from a majority of any State’s legislative chamber, let alone a majority of an entire State legislature.
They knew their legal theories would never pass muster in a court of law. They knew the legislatures were never going to claw back Biden's electoral votes. And they knew Mike Pence was never going to go along with their coup plot. But that didn't stop them from spewing bile to rile up the crowd, even knowing full well that they were armed and intending to march on the Capitol.
Does that meet the legal definition of incitement? Well, that's up to Clarence, Sam, John, Neil, Brett, and Amy.
The committee closes the chapter by reminding us again who is the villain, and who is the hero here:
Days afterward, Eastman sent an email to Giuliani, making a request that tacitly acknowledged just how much trouble he was in: “I’ve decided that I should be on the pardon list, if that is still in the works.”
Vice President Pence and his team never bowed to President Trump’s relentless pressure. They began January 6, 2021, with a prayer. The attack on the U.S. Capitol delayed the peaceful transfer of power. The joint session did not end until early in the morning on January 7th. At 3:50 a.m. that morning, [Pence chief of staff Marc] Short texted Vice President Pence a passage from Second Timothy, chapter 4, verse 7: “I fought the good fight. I finished the race. I have kept the faith.”
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.