by Neil H. Buchanan
People are still grappling with the Woodward/Costa revelations regarding former Vice President Mike Pence's possible flirtation with the completely nutty constitutional argument from Trump lawyer (and disgraced former law professor and dean) John Eastman. Eastman, readers will recall, claimed that Pence could simply take control of the January 6 joint session of Congress and prevent Joe Biden's victory from being formalized. Pence said no, but how close did he come to saying yes?
I am surprised to find myself saying that there is more to this story, but here we are. Pence's actions are in some sense truly bizarre, and not merely because he ultimately found his moral bearings by talking with Dan Quayle. In a lawless administration that had by that point reached its most extreme stage of degradation, why did Pence not simply do what Trump wanted and then dare the world to try to stop him?
Professor Michael Dorf (here) and I (here, followup here) have both had some fun with the Eastman memo, which cited a Verdict piece that we co-authored last year with Professor Laurence Tribe. I almost wrote just now that Eastman name-checked us, but in fact the only person he mentioned by name was Tribe, even though the link in Eastman's memo takes readers to our joint piece. (The relative anonymity is quite welcome from my perspective, as I suspect it is from Professor Dorf's as well.) Larry, Mike, and I followed up with a Boston Globe op-ed last week in which we tried to make clear just how wrong Eastman was/is.
As this latest twist in the constitutional storm-de-merde has sunk in, it has become more and more difficult to understand what Eastman thought he was doing with our Verdict piece. He could have said that our argument implied that tossing out enough Biden electoral votes would allow Trump to win in the Electoral College, full stop. That would have been accurate, at least in that we would agree that a legitimate process that resulted in some electoral slates being non-appointed could change the result.
But Eastman somehow thought it wise or fun to imagine that we would freak out if any of that were to happen (which we would, but not for the reasons that he imagines), asserting that Democrats would then be completely hypocritical and stupid by insisting that Tribe's "prior position" was wrong and that the Twelfth Amendment required that the president be selected by the House.
Tribe's prior position, however, would have continued to be his position, because it was correct. And even if Larry (or Mike, or I, or congressional Democrats) were purely cynical or instrumental, it would make no sense to insist on a constitutional process that would result in Trump's selection. But because Eastman actually is hypocritical, stupid, cynical, and instrumental, he apparently thinks that other people are all of those things, too.
So Eastman is a hack, but there was an endless supply of hackery in the Trump years, including most of what former AG William Barr did up until the very end. The question, then, is why Eastman's hack work-product did not carry the day, as so much else had done before then. Why were Trump and Eastman unable to prevail on Pence?
In "The revelations about Mike Pence’s role in Jan. 6 keep getting worse," The Washington Post's Greg Sargent discusses the reported meeting in which Eastman tried to convince Pence and one of Pence's key aides to do Trump's bidding. (Aside: Sargent follows in the footsteps of oh-so-many journalists in casually accepting the accuracy of the "throw it to the House" Twelfth Amendment-based stratagem. Grrrr.) Sargent allows for the possibility that Pence was never going to take Eastman seriously but was merely trying to mollify Trump by seeming to be trying to take his side. Even so, as Sargent points out, Pence and his aide seemed to be trying very hard to be convinced, including having a followup discussion with Eastman the next day.
I understand why Sargent is so suspicious, but I am inclined to accept the idea that Pence was merely trying to placate Trump by listening politely. If Pence had truly wanted to do Trump's dirty work, I think he could have convinced himself to do so -- and he might have gotten away with it. Yes, that last assertion probably should have been the headline of this column, but I am an academic, not a journalist who worries about "burying the lede/lead."
Late last week, I was interviewed on public radio's On Point program about the Eastman memo and the related fallout, and I found myself making some observations that I had not previously articulated. In particular, I pointed out that it in fact did not matter that Eastman's memo was silly and indefensible. No matter how bad one thinks the memo was, it was even worse; but so what?
What matters is that Pence could have done what Trump does all the time: lie. He could have called Eastman a "respected constitutional scholar" who had provided a positively devastating argument that proves that the Vice President's role on January 6 is not strictly ceremonial and procedural. As I put it in my radio interview, hack memos like Eastman's exist to be waved in the air, not to be read or defended. It is in some sense the opposite of Neville Chamberlain's infamous waving in the air of a piece of paper signed by Adolf Hitler, which Chamberlain wanted the world to take seriously enough to believe that it might actually constrain Nazi aggression. Here, Pence need not have expected anyone to think that the piece of paper would ever hold up, but it would have been enough of a fig leaf to get him to the next step. (Would we really want someone waving his fig leaf in the air?)
And that next step would have been to say, "... and this brilliant memo says that I have the ability to control this joint session, allowing me to adjourn the session," giving Republican-controlled legislatures some extra time to authorize rogue slates of electors. Eastman includes some bizarre stuff at the end of the memo, including another poke at Tribe, claiming that the courts would have to side with Pence in allowing more time. There is also some drivel about limitations on debate and using the filibuster.
Apparently, the whole strategy was designed to buy time, giving "state legislatures more time to weigh in to formally support the alternate slate of electors." But why? What is the purpose of generating at that late date a second set of electors anywhere? Eastman's second step reads: "When [Pence] gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States." But in fact that was not true, so why choose that particular lie?
Why not, instead, have Pence announce that the Electoral Count Act is unconstitutional, that he as Vice President has the power to refuse to recognize electoral slates that are in his judgment "illegitimate," that he can use that supposed power to drop as many Biden votes as needed, and then declare Trump the winner? No need to get Ted Cruz or Rand Paul to filibuster, and no need to play games with the separate House and Senate votes.
In my radio interview, I wondered aloud why Pence had not channeled Stalin's dismissive retort, after being told that he might want to win favor with the Pope: "The Pope! How many divisions has he got?" I noted that the Supreme Court was obviously not going to walk en masse to where Pence was standing and announce that he had exceeded his authority.
Pence could have lied that he had the power to do what he was doing, then dared people to try to stop him. Would Democrats have recreated the scenes that we sometimes see in foreign parliaments (and that used to happen in the U.S.), with full-on melees of politicians physically pummeling each other? What good would that have done? At worst (from Trump's standpoint), an aggressive move by Pence would have resulted in the passage of some amount of time before someone declared authoritatively that the Vice President could not do what he had done; but in the meantime, Trumpists across the country would have been waving the Eastman memo around, saying that the elites were trying to take away Trump's landslide victory. Sound familiar?
I am not saying that it is difficult to figure out what Pence was thinking in the moment, given that he did not know at the time how much more radical and uncaring about the rule of law his party would become post-January 6. So he probably simply believed Quayle's (correct) assertion that he (Pence) could not legally do what Trump wanted. Because he did not want to be on the wrong side of the law, he said no to Trump.
My question, then, is not, "What was Pence thinking?" The question is: "What if Pence had decided to go for it?" At best, we would have had weeks of chaos and uncertainty about whether Joe Biden would ever be president, with Cruz and Josh Hawley asserting falsely that Pence was obviously right. And even if Biden did ultimately prevail, there was no way of knowing how much time would pass before it was all sorted out, providing all kinds of risk that still-the-Commander-in-Chief Trump would do crazy things and encourage his followers to do their worst.
As it happens, this scenario will not be in play in 2024/2025. Most obviously, Kamala Harris is the Vice President. To consider an extreme possiblitity, however, imagine that somehow both Biden and Kamala Harris have been impeached and convicted by that point. Even there, the then-sitting vice president will not have any need to do what Pence refused to do, because the combination of voter suppression and partisan certifications that Republicans have enacted in key states will make it impossible for the Democrats to win in the Electoral College in any case.
As a practical matter, then, January 6, 2021 was almost certainly the one and only time that it would have made sense for a Vice President to try to seize power and unilaterally declare the winner of the presidency. That Pence did not do so is honestly a surprise and a relief, because this would have been the most pointed example ever of the adage: "It's better to ask forgiveness than permission." Pence could have created new facts on the ground that would have changed everything. And due to the fact that he did not do so, we received a reprieve from full-on authoritarianism -- temporary but welcome.