Donald Trump furiously claimed Tuesday night that Mike Pence can overturn the election result single-handed in Congress Wednesday – and denied the vice president had told him he could not.
The president issued a statement after the New York Times reported that Pence had told him over lunch that he had no constitutional power to ‘decertify’ states’ slates of electors when he presides over Congress to certify the election result.
But Trump called that ‘fake news’ then outlined an extraordinary plan to either get Republican state legislatures to send Trump electors – or turn the election to Congress under the 12th Amendment, which could then vote for Trump.
ABC News’ White House Correspondent Jon Karl reported that Trump was ‘prepared to go after Pence and go after him hard’ if he does not get in line and overturn the election at the special session of Congress which begins at 1pm Wednesday.
Trump gave a suggestion of his public fury in his statement Tuesday night.
‘Decertifying’ the results would plunge the country into a constitutional crisis but Trump claimed that Pence was in ‘total agreement’ that he ‘has the power to act.’
Trump’s statement publicly turned the heat up on Pence after a pressure campaign which has been going on in private for weeks and exploded into the public on Monday night at Trump’s Georgia rally, then on Twitter Tuesday.
‘The New York Times report regarding comments Vice President Pence supposedly made to me today is fake news,’ Trump said in a statement issued by the White House. It was dated 2020.
‘He never said that. The Vice President and I are in total agreement that the Vice President has the power to act.
‘The November 3rd election was corrupt in contested states, and in particular it was not in accordance with the Constitution in that they made large scale changes to election rules and regulations as dictated by local judges and politicians, not by state legislators. This means that it was illegal.
Delivering bad news: Mike Pence was spotted at the White House Tuesday after Trump had tweeted that the vice president could disqualify Electoral College votes. Pence was on his way to tell Trump that he could not
Trying to lighten the blow: Mike Pence told Trump he might attempt to ‘acknowledge’ his claims of fraud – partly driven by his own fear that confirming Joe Biden’s victory will be used against him
Trump’s tweet is false and Pence does not have the power the president claims he has
‘Our Vice President has several options under the U.S. Constitution. He can decertify the results or send them back to the states for change and certification.
‘He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation.’
Significantly, however, the statement was not signed by Pence – and the legal claims Trump made appeared to be in line with plans outlined by Rudy Giuliani, not the Senate Parliamentarian who has advised Pence that his powers are limited to confirming the electoral college votes read out on the floor of Congress.
Trump also tweeted ‘big news from Pennsylvania’ with a copy of a letter sent by Republican state lawmakers to Mitch McConnell and the Republican minority leader in the House asking for certification to be ‘delayed.’
The lawmakers claimed that the election outcome should be put off until after the Supreme Court has considered a Republican challenge to the running of Pennsylvania’s voting – which the justices have scheduled no date to hear, and asked for responses on January 22, after Trump leaves office.
The letter repeats claims about the election which have been dismissed by state and federal courts repeatedly.
That Trump tweeted it shows his level of desperate clutching at straws with Congress all but certain to torpedo his bid to overturn the election as early as Wednesday.
Trump had first wanted Republicans to vote to reject electors from swing states, but a majority of GOP senators have made clear they will not go along with that, making it dead on arrival.
His next attempt is to claim Pence has powers to simply reject votes himself, a claim advanced by Rudy Giuliani and other fringe lawyers but dismissed by constitutional experts as absurd.
Pence was himself reported to have told Trump Tuesday that he was wrong.
He delivered the bad news over lunch, the New York Times reported, sugaring the pill by suggesting he could in some way acknowledge Trump’s discredited claims when he presides over the Senate.
Ahead of the traditionally ceremonial event, President Donald Trump had escalated his pressure campaign on Pence to help him overturn the election results and spend another four years in the White House.
‘The Vice President has the power to reject fraudulently chosen electors,’ the president tweeted on Tuesday morning, wrongly stating what Pence can do when he is in the presiding chair.
But shortly after when the two met for their regular lunch, Pence delivered the bad news that he could not.
The New York Times reported that Pence also told Trump to lighten the blow that he would keep ‘studying the issue’ until the joint session begins at 1pm Wednesday.
In fact Pence spent hours this week with the Senate Parliamentarian, who advises senators and the vice president on the rules when they are on the floor of the Senate – or in Pence’s unique case, presiding over the joint session certifying the election.
Truth to power: Donald Trump demanded publicly Monday night at his rally in Georgia and then on Twitter that the vice president aid his campaign to overturn the election. Pence told him Tuesday he could not
Desperation move: Trump’s extraordinary plan to overturn the election through Mike Pence is a final attempt to stop Joe Biden’s victory being confirmed
If a member of the House and Senate both object to one of the state’s slates of electors, the two chambers split to debate the objection for two hours – with Pence presiding over the Senate.
That is when he could offer some ‘acknowledgment’ of Trump’s claims about fraud to ameliorate both the blow to his boss, and the potential for the president to turn on his ultra-loyal deputy in the dying days of the administration, and beyond.
Pence is said to be particularly concerned that his certification of Biden’s victory could be weaponized against him on social media.
His delivery of bad news to Trump came after a lawsuit brought by Louis Gohmert, an ultra-loyalist congressman, which demanded that federal courts say Pence could disqualify electoral college votes was dismissed rapidly by a judge and an appeals court.
That legal move would have offered Pence some cover that he could point to judges as having ruled out the possibility that he could disqualify voters – which no vice president had ever done and which constitutional experts had said was simply legally impossible.
But an ‘acknowledgment’ of Trump’s claims represents a Pyrrhic victory for the president – with Republican senators dealing his campaign to have them vote against approving swing states’ votes a series of blows Tuesday, as more and more said they would not get behind it.
Senators Tim Scott and Jim Inhofe became the latest GOP lawmakers to risk the wrath of Trump with their decision to back Biden – at least 23 Republican senators will vote to certify Biden’s election win
Senators Tim Scott and Jim Inhofe became the latest GOP lawmakers to risk the wrath of Trump with their decision to back Biden.
‘As I read the Constitution, there is no constitutionally viable means for the Congress to overturn an election wherein the states have certified and sent their Electors. Some of my colleagues believe they have found a path, and while our opinions differ, I do not doubt their good intentions to take steps towards stamping out voter fraud,’ Scott said in a statement.
Inhofe also cited the Constitution as his reason.
‘My job on Wednesday is clear, and there are only two things I am permitted to do under the Constitution: ensure the electors are properly certified and count the electoral votes, even when I disagree with the outcome,’ he said in a statement.
More and more Republican senators joined in as the clock ticked toward Wednesday, including Senators Jerry Moran and John Boozman.
Moran said the plan to object would ‘risk undermining our democracy–which is built upon the rule of law and separation of powers.’
And Boozman made a similar argument.
‘Under the Constitution, Congress does not have the legal authority to change the outcome,’ he said. ‘These principles are enshrined in the Constitution to ensure the American people, not the party in control of Congress, have the power to choose their president.’
At least 24 Republican senators will vote to certify Biden’s election win, according to a count by Politico while 13 are supporting Trump. And 14 are undecided. The Senate is short one senator as David Perdue’s term ended January 3rd. The winner of Tuesday’s special election in Georgia will take the seat.
It takes a simple majority of 51 senators to sustain the objection to a state’s electoral college result, upending it.
But with all 48 Democrats unlikely to do so and the 24 Republicans joining them, that’s 72 votes for Biden, leaving Trump’s hopes in the dust.
Senator Ted Cruz, who is leading the objection effort, will challenge the results of Arizona on Wednesday while Senator Kelly Loeffler will likely lead the objection when it comes to the results in her home state of Georgia. Senator Josh Hawley, another GOP leader in the movement, will challenge Pennsylvania’s.
The focus of the objections would be on those three states – down from the original six lawmakers originally discussed.
Even without the outcome highly unlikely to go Trump’s way there is bound to be plenty of fiery floor debate and political theater.
But Trump may not get a mass gathering of Republican lawmakers protesting on the floor.
The House Sergeant at Arms and Capitol physician sent a memo to lawmakers Tuesday evening about the joint session, requesting that ‘access to the Floor of the House will be limited to those Members who are scheduled to speak during the joint session.’
And for Pence, who has walked the tight rope of Trump’s presidency for four years without faltering, what he does Wednesday will be the ultimate loyalty test, at least in the eyes of the president, who is publicly putting on the pressure.
Trump has made it clear he expects his second-in-command to keep him in the White House even if Pence does not legally or constitutionally have the power to do so.
‘I hope Mike Pence comes through for us. He’s a great guy,’ Trump told a campaign rally Monday night in Dalton, Georgia. ‘Of course if he doesn’t come through I won’t like him quite as much.’
READ THE FULL 12th AMENDMENT
The 12th Amendment is the fundamental law behind Congress certifying the election on Wednesday. But it is also one of the most complicated parts of the Constitution, starting with a 202-word multi-clause sentence. Here is its full text.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Ultimately, Biden is expected to be certified as the winner of the election on Wednesday, which Pence, in his role as president of the Senate, is expected to announce after the certification is complete.
Pence’s role in Wednesday’s session is largely ceremonial but he will have to balance his constitutional duties with a reluctance to anger Trump and his power political base.
But, despite the pressure campaign, Trump cannot grant powers by tweet, leaving Pence limited in what he can legally do.
The 12th amendment of the Constitution – along with the Electoral Count Act of 1887 – makes it clear Pence’s role is to make parliamentary rulings. It does not include any power in how Congress counts the electoral votes.
When it comes to a conflict between the House and Senate over whether or not to certify a state’s electoral college count, the Electoral Count Act of 1887 gives the deciding power to the state’s governor and not the vice president, meaning the state’s result will stand and Pence has no legal path to overturning it.
Pence would not be the first vice president to have to preside over his party’s loss of the White House: Richard Nixon, Dan Quayle, Al Gore and Joe Biden all presided over counts that handed them, or their party, a defeat. Biden even gaveled down an effort to object to Trump’s victory when he presided over the electoral count in January 2017.
But Pence is likely the first vice president who will be blamed by his boss for it.
Biden won the electoral college by 306 votes to Trump’s 232. And while some Republican lawmakers plan to object to the certification of some states’ results when they are announced on Wednesday, they are highly unlikely to overturn the election results.
When all is said and done, Biden will be inaugurated the 46th president on January 20th.
Trump, however, has refused to concede the contest. He continues to claim massive voter fraud but has shown no proof of any such thing. His former Attorney General Bill Barr said he saw no evidence of widespread voter fraud.
Pence, 61, who is known to have presidential ambitions of his own, will be on the hot seat Wednesday as he sits at the Speaker’s rostrum in the House, gavel in hand.
He will act according to constitutional procedure, according to reports, and follow the rules as outlined in the law.
But he has to balance that with his desire not to anger Trump’s large base of power in the party – support he’ll need in any future political endeavors.
A report in Roll Call raised questions about what exactly Pence will do Wednesday. The Capitol Hill newspaper quoted Republican Senator Chuck Grassley, the pro temp of the Senate, saying he would be presiding instead of Pence because ‘we don’t expect him to be there.’
But Pence’s office was quick to say the vice president would be present and Grassley’s office quickly clarified the senator was referring to having to take over if Pence needed a break.
It raised questions, however, if Pence would be taking those breaks when things got hot politically speaking.
Pence’s role is to open the states’ sealed certificates in alphabetical order and hand them them to one of four ‘tellers’ — a Republican and a Democrat from each chamber of Congress – who will announce how each state voted.
As each state’s result is read, Pence will ask whether any member of Congress wishes to raise an objection. If an objection is raised from both a House and Senate member, the matter goes to each chamber for two hours of debate and a vote on whether or not to sustain the objection.
As part of his parliamentary duties, it’s Pence who will decide if the objection is valid to warrant the two hour debate and vote in each chamber.
After the breakout session, lawmakers return to the joint session to continue the roll call of state results. If there is another objection, the process begins all over again.
Given the Democratic control of the House and the fact that many Republican senators don’t support the objections, none are expected to be sustained.
Trump and his allies were hoping enough objections would occur to bring Biden under the 270 mark in the electoral college count – the amount needed to win the presidency.
That would throw the election to the House. Under the 12th Amendment to the Constitution, each state congressional delegation gets one vote. While Democrats control the House, Republicans control the majority of state delegations, which is how Trump hopes to be ‘elected.’
Vice President Mike Pence (left) and his Chief of Staff Marc Short stand in the Oval Office before President Donald Trump departs the White House on Monday for a campaign rally in Georgia
Pence, who was in the Capitol on Sunday to swear in the newly-elected senators, also met with the Senate parliamentarian to discuss Wednesday’s procedure.
And while campaigning for Georgia’s Senate candidates in that state on Monday, Pence responded to shouts of the ‘stop the steal’ with this: ‘We all got our doubts about the last election. And I want to assure you, I share the concerns of millions of Americans about voting irregularities. And I promise you, come this Wednesday, we’ll have our day in Congress.’
He made no promises of an outcome.
Other points of pressure are coming Pence’s way.
Peter Navarro, the White House trade adviser, claimed inaccurately on Fox News over the weekend that Pence could call for an ’emergency 10-day audit’ of the election returns in the states Trump allies are disputing. Pence does not have that power.
Additionally, a group of Republican House members filed legal action to try and expand Pence’s powers in the certification process, but Trump’s own Justice Department came out against it and a judge appointed by Trump threw it out of court.
Pence and his chief of staff Marc Short were in the Oval Office with President Trump and other advisers on Monday night before the president left for Georgia to campaign for the two Republican senators on the ballot in Tuesday’s special election.
But most of Trump’s remarks at that rally were about himself.
‘You know I’ve had two elections, I’ve won both of them, it’s amazing,’ Trump said. ‘And I actually did much better in the second one.’
The low down on how Congress certifies the Electoral College vote
At 1:00 p.m. on Wednesday, Senators and Representatives will gather in the House chamber for a Joint Session of Congress to count and certify the electoral college ballots.
Joe Biden defeated President Donald Trump by 306 electoral votes to Trump’s 232.
But the constitution calls for Congress to certify the results, in a process that has become largely procedural. It is very difficult to over turn an election and it has never happened in American history.
Republicans, however, have vowed to object to the electoral college results, dragging out the certification process and putting on a grand display of theater that will likely please the president.
Here’s how the day will play out:
The process is presided over by the president of the Senate, which is Vice President Mike Pence.
Pence will open the states’ sealed certificates in alphabetical order and hand them them to one of four ‘tellers’ — a Republican and a Democrat from each chamber of Congress – who will announce how each state voted.
As each state’s result is read, Pence will ask whether any member of Congress wishes to raise an objection.
At least one member of the House and one member of the Senate must object for the objection to stand. The law also states the objection must be in writing.
If the objection is recognized, the lawmakers go to their respective chambers to debate the matter for up to two hours.
Then the House and Senate each votes on whether to sustain the objection – which would dismiss the state’s votes – or reject the objection.
For a state’s results to be dismissed, majorities of both chambers have to vote to sustain the objection. If one chamber votes to sustain the objection and the other doesn’t, the objection is dismissed and the state’s electoral college results stand.
The Democratically-controlled House is unlikely to support sustaining an objection, meaning the states’ results will stand and Biden will ultimately be declared the winner.
Additionally, the Republican-controlled Senate isn’t likely to vote in favor of an objection, either. The GOP has a slim margin in the upper chamber and a number of Republican senators have voiced their objections to the objection process.
After the objection is voted on by each chamber, the joint session reconvenes and continues with the count. If there’s another objection to a different state’s vote, the process is repeated.
President Trump’s allies are looking at challenging three states: Arizona, Georgia, and Pennsylvania, which could go into the early morning hours of Thursday.
‘At the end of the day, which could be the middle of the night, Joe Biden and Kamala Harris will be officially declared the next President and Vice President of the United States,’ Speaker Nancy Pelosi wrote to Democratic House members on Monday.
After the votes are recorded from all 50 states and the District of Columbia, the vice president declares who has received the requisite majority of electoral college votes. That announcement finalizes the election.
WHAT IF THE OBJECTIONS ARE SUSTAINED?
If, by some remote chance, an objection is sustained, Trump and his allies hope that will result in the electors being thrown out, ultimately bringing Biden’s electoral count below the 270 needed to win.
If all three state challenges are successful, Biden would have 259 electoral votes, throwing the election to the House of Representatives to select the next president.
Under the 12th Amendment to the Constitution, each state congressional delegation gets one vote.
While Democrats control the House, Republicans control the majority of state delegations, which is how Trump hopes to be ‘elected.’
Sources: NBC News, Washington Post, New York Times
‘Don’t argue with fools!’ Top Democrat Cedric Richmond warns party’s reps not to get dragged into debate in Congress over Republicans’ bid to overturn the election results on Wednesday
President Trump‘s demand that Congress overturn the election results in states he lost has provoked a split in his party – and Democratic leaders are now cautioning their own members to steer clear of arguments when the vote gets certified.
Rep. Cedric Richmond, a Louisiana Democrat who is joining the incoming Biden administration as director of White House engagement, has told colleagues there isn’t an upside to jumping into a point-by-point clash over Trump’s election fraud claims.
‘You don’t argue with fools, because at a distance you can’t tell who the fool is,’ he said on a party conference call Monday, Politico reported.
‘You don’t argue with fools,’ Representative Cedric Richmond, a Democrat from Louisiana is urging colleauges
House Speaker Nancy Pelosi is mindful of the spectacle that the election challenges could provoke – and wants her members to be ‘dignified’ through the process – although unsubstantiated allegations of widespread fraud by Texas GOP Rep. Louis Goehmert and others is certain to provoke an angry backlash.
The House meets Wednesday in a special joint session to count the Electoral College votes.
The number of Republican senators planning to go along with election challenges grew to 13 at Trump’s Georgia rally when Sen. Kelly Loeffler announced she was behind the effort.
But the leaked recording of Trump’s call with Georgia Secretary of State Brad Raffensperger may have undermined the Senate GOP efforts by linking claims the lawmakers hitched to the Constitution to the president’s request that Raffensperger ‘find’ 11,780 votes for him.
It was unclear if the explosive call had prompted Senate Republicans to dial back some of their plans and focus on a smaller number of states to launch challenges.
House Speaker Nancy Pelosi wants Democrats to remain dignified as Republicans challenge the election Joe Biden won by 306 to 232 electoral votes
Sen. Ted Cruz (R-Texas) says he will raise election challenges
President Donald Trump asked Georgia’s secretary of state to ‘find’ 11,780 votes for him
Missouri Sen. Josh Hawley (R) was the first senator to say publicly he would back election challenges
Georgia election official Gabriel Sterling debunked many of the president’s ‘fantastical’ claims in a press conference Monday.
GOP strategist Doug Heye told The Hill regarding Trump’s leaked call: ‘The tape now makes it harder for other people to join on. They had a legal process argument that they could make even if it wasn’t the most credible one,’ he continued. ‘The tape blows that out of the water.’
Whatever Democratic leaders caution, rank-and-file Democrats who get opportunities to speak when Republicans raise protests to states’ electoral votes are likely to get heated.
‘It’s treasonous. The fact of the matter is the election results have been certified,’ said Rep. Jim Costa, D-Calif. Party leaders are preparing for tense debates on Wednesday
Rep. Jim Costa (D-Calif.) is among those who have erupted at Republicans going along with Trump’s effort.
‘It’s treasonous. The fact of the matter is the election results have been certified,’ he said.
If a House and Senate member object to a state’s certification, each chamber will meet separately for two hours to consider the challenge, where members will give speeches, followed by a vote.
More than 100 House Republicans are expected to back election challenges.