Tuesday, January 05, 2021


We're being told that tomorrow's joint session of Congress, at which electoral votes will be ceremonially counted (and challenged), is Donald Trump's "last stand." It obviously isn't -- as I've been telling you, he won't stop fighting this until January 20, and he'll probably continue beyond that. I'm not sure how he'll fight it, but I think I know his next move. It involves Mike Pence's role in tomorrow's proceedings. And no, I don't think it will work.

The New York Times tells us that Pence intends to show up tomorrow.
There is no chance of Mr. Pence not being there, people close to him said.
But while he's backed congression challenges to Biden electors, he doesn't believe it's his job to challenge or block electors personally, the Times says.
Mr. Pence does not have unilateral power to affect the outcome of Wednesday’s proceedings. But he has carefully tried to look like he is loyally following the president’s lead even as he goes through a process that is expected to end with him reading out a declaration that Mr. Biden is the winner.

After nearly a dozen Republican senators said they plan to object to the certification of the vote on Wednesday, the vice president’s chief of staff, Marc Short, issued a carefully worded statement intended not to anger anyone.

“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 Jan. 6,” he said.
However, Trump is micromanaging Pence.

What Giuliani says at the outset of that podcast is factually wrong, but it's undoubtedly what Trump wants to believe:
GIULIANI: Well, I mean, the fact is that you have a constitutional provision on the Electoral College, then it got changed by the Twelfth Amendment because of the confusion in the election of 1800, when Jefferson thought he was elected president and Burr was supposed to be the vice president, but they had the same vote and Burr challenged him, and eventually Jefferson became president. And the interesting thing to know is, he selected himself president. He was the vice president of the time. He was the Mike Pence of his day. There was a dispute about Georgia. Georgia had voted in one case for Burr, in one case for Jefferson, different electors. Jefferson said, "I make the decision as the president of the Senate. Basically I pick me" -- which is precedent for the vice president making the choices with regard -- or ruling on disputes. Then you have a statute that was passed in 1788, I believe it was, about that time, and it changes the procedures quite a bit. The problem with the statute is, it takes power away from the House of Representatives, that is exclusively supposed to choose the president if there's a problem with the Electoral College, and it shares that power with the Senate, and it also takes power away from the state legislatures. So our best legal opinion on that is that's unconstitutional.
Where to begin? Well, for starters, Jefferson did not choose himself as the winner of the 1800 election. Here's what happened:
Democratic-Republican Thomas Jefferson defeated Federalist John Adams by a margin of seventy-three to sixty-five electoral votes in the presidential election of 1800. When presidential electors cast their votes, however, they failed to distinguish between the office of president and vice president on their ballots. Jefferson and his running mate Aaron Burr each received seventy-three votes. With the votes tied, the election was thrown to the House of Representatives as required by Article II, Section 1 of the U.S. Constitution. There, each state voted as a unit to decide the election.

Still dominated by Federalists, the sitting Congress loathed to vote for Jefferson—their partisan nemesis. For six days starting on February 11, 1801, Jefferson and Burr essentially ran against each other in the House. Votes were tallied over thirty times, yet neither man captured the necessary majority of nine states. Eventually, Federalist James A. Bayard of Delaware, under intense pressure and fearing for the future of the Union, made known his intention to break the impasse. As Delaware’s lone representative, Bayard controlled the state’s entire vote. On the thirty-sixth ballot, Bayard and other Federalists from South Carolina, Maryland, and Vermont cast blank ballots, breaking the deadlock and giving Jefferson the support of ten states, enough to win the presidency.
(This process did not drag out past Inauguration Day, by the way. Inauguration Day at the time was March 4. UPDATE: See Yastreblyansky's clarification of what happened, in comments.)

Giuliani makes quite a few other claims over the course of the podcast. A law professor named Derek Muller rebuts Giuliani at length here. (Just for the record, the statute Giuliani refers to is the Electoral Count Act, which was passed in 1887, not 1788.)

The Times suggests that Pence won't try to seize the power Giuliani claims he has to challenge electors personally:
Members of the vice president’s circle expect that Mr. Pence will follow the rules while on the Senate floor and play his ceremonial role as scripted, aides said. But after that, he will have to compensate by showing his fealty to Mr. Trump.
It's likely that Pence has also been listening to much better lawyers than Giuliani, and they're telling him he can't do the things Giuliani says he can do.

So I'm guessing that Pence will leave the challenges to members of Congress, then announce Biden as the winner -- but he'll also break protocol and announce that the fight continues. Team Trump will then go back to court and argue that the entire process was constitutionally flawed, along the lines of what Giuliani said on Kirk's podcast. MAGA Nation will conclude that this is the real Kraken and Trump will triumph now.

And when this court challenge is rejected, that's when we have to worry about the Insurrection Act and martial law.


UPDATE: But after Jefferson was declared the winner of that 1800 election, everything was chill -- right?
A contingent of sword-bearing soldiers escorted the new president to his inauguration on March 4, 1801, illustrating the contentious nature of the election and the victors’ fear of reprisal.
Oh, okay.
In his inaugural address, Jefferson sought to heal political differences by graciously declaring We are all Republicans, we are all Federalists.
Biden will try that. Biden has been trying that. It won't help this time.


UPDATE: This post was written based on the assumption that Mike Pence would participate in tomorrow's congressional joint session. Then we were told that he wouldn't:

It appeared that the president was demanding that Pence do things he refused to do. As I told you a while back, Pence isn't required to be there -- "the President of the Senate" is, but that can be Grassley, the president pro tempore.


I have no idea who will preside.

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