As it stands, it is the vice president’s job to preside over the election certification process. But in their desperate (and futile) effort to help Donald Trump remain in power against voters’ will, some of the president’s allies are seeking to expand Mike Pence’s authority when lawmakers meet next week to formalize Joe Biden’s victory, asking a judge to give Trump’s veep the power to throw out electors as he sees fit. In theory, this would allow Pence to toss the results in swing states that went for the Democrat and help keep Trump’s hopes of overturning the results alive.
But one problem with the plan, among a great many, is that Pence himself doesn’t seem so keen on the idea of going full authoritarian with Trump and his most extremist allies like Rep. Louie Gohmert—he of the newly missing tooth—who on Monday filed a lawsuit against the vice president that argued he should be able to decide which electors lawmakers vote on January 6. It’s beyond a long shot and, according to a motion filed to expedite the case, Gohmert and Arizona Republicans only filed it after Pence’s team declined to go along with the plan in a private meeting. “Plaintiffs’ counsel made a meaningful attempt to resolve the underlying legal issues by agreement, including advising the Vice President’s counsel that Plaintiffs intended to seek immediate injunctive relief in the event the parties did not agree,” the motion filed Tuesday read. “Those discussions were not successful in reaching an agreement and this lawsuit was filed.”
To be sure, the suit filed by Gohmert and Arizona Republicans is as dubious as any of the failed legal challenges that have been filed on Trump’s behalf since his November loss; as the former United States Attorney Harry Litman put it Tuesday, giving the vice president the authority to somehow change the count next week would be “like saying the Oscar presenters get to decide who wins Best Picture.”
The case could ultimately force Pence’s hand, though, requiring him to take a definitive stand against the autocratic Hail Mary, or to openly support his boss’s effort to install himself for another term, despite his definitive loss to Biden. If his lawyers’ rebuff of Gohmert et al suggests Pence is averse to participating in such an antidemocratic plot, it’s not because his conscience is kicking in. At best, he’s been silently enabling Trump’s tantrum. At worst, he’s joined Trump in suggesting that the election was marred by nonexistent voter fraud. “We’re going to keep fighting until every legal vote is counted,” he said earlier this month at a rally in support of Kelly Loeffler and David Perdue, the Republican incumbents in Georgia’s runoff elections. “We’re going to keep fighting until every illegal vote is thrown out.”
For all his bluster about “staying in the fight,” Pence has good reason not to follow Trump all the way down the road to ruin; he’s widely believed to have his own designs on the White House. And while he’ll want to stay on the good side of Trump and his true believers if he hopes to inherit the MAGA throne, a starring role in a desperate and assuredly doomed effort to thwart the will of the people probably wouldn’t be the best line to have on his resume. Perhaps it’s most likely, then, that he’ll preside over the congressional certification and then skip town before Trump can tear him a new one, as he has apparently planned.
That would exhaust all opportunities for Trump to mount even a quasi-legitimate challenge to the results, though he’s likely to push on until the bitter end—not just because he is, by nature, unable to acknowledge failure, but also because of the legal peril he could find himself in the moment Biden is inaugurated. Trump has already been so concerned about the probes facing him when he leaves office that he’s floated issuing himself a pardon. But Manhattan District Attorney Cy Vance has given him more reason to worry; the Washington Post on Tuesday reported that the prosecutor has hired forensic accountants to help him scrutinize Trump’s business and financial dealings—an escalation of the two-year-old inquiry that could spell trouble for a soon-to-be citizen Trump.
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