Trump to Pence: Now's the time for "extreme courage," pal

Well, the “extreme” part is accurate, anyway. Donald Trump made the Rolling Stones’ “You Can’t Always Get What You Want” a staple of his rallies, but the outgoing president seems to have embraced Journey’s “Don’t Stop Believing” as his new anthem. What’s next — “Don’t Dream It’s Over”?

Coincidentally, today’s effort would involve a crowded House:

Almost nothing except the “extreme” part is correct in this statement. Not one legislature has moved to “correct” their votes, which they could arguably do by certifying an alternate slate of electors. Not one governor has suggested that the results were “based on irregularities and fraud.” And neither Mike Pence nor Congress has any authority under the Constitution or the Electoral Count Act to send a presidential election “back to the States,” as Andy McCarthy reminds us:

The Constitution gives the vice president no power whatsoever over the states. In fact, the Twelfth Amendment gives him no authority to do anything other than “open all the certificates” by which the states have individually certified their electoral votes. It doesn’t even say he gets to count the votes. After directing the veep to open the certificates, the amendment goes into the passive voice: “and the votes shall then be counted.”

That is because the task is entirely ministerial, as is the vice president’s participation. Yes, it is solemn. After all, a presidential election is being certified. On such an occasion, the Constitution aptly calls for a joint session of Congress, led by the veep in his capacity as presiding officer of the Senate. But Congress is in the role of witness, not judge. Pence and the federal lawmakers are there to observe each sovereign state’s formal certification of which candidate has been awarded its electoral votes, and the tabulation by which the states collectively elect the president.

In fact, under the Constitution, the Senate and House do not even certify the result.

It has become common over the past few weeks for federal lawmakers to refer to the joint session as their “certification” of the Electoral College result. Senator Josh Hawley (R., Mo.), for example, told Fox’s Bret Baier and Martha MacCallum on Monday night that he needed to register some objections on behalf of his constituents because he could not otherwise, in good conscience, “certify” the election. But no one is asking him to certify anything. The Twelfth Amendment simply says the states’ votes get counted, and “the person with the greatest Number of votes for President, shall be President, if such number be a majority of the whole number of Electors appointed” (emphasis added). Moreover, while Senator Hawley repeatedly claimed that Section 15 of the federal election law calls for Congress to certify the states’ votes, the statute says no such thing. Eight times, it refers to certificates or otherwise utters the word certified, but in each instance, it is referring to the state’s certification of its election result or its electors. There is no congressional certification because it’s the states that elect the president. No congressional sign-off is required.

McCarthy, like our colleague Shipwreckcrew at RedState, wonders whether the ECA is constitutional. If it’s not, though, then Congress has even less power over the Electoral College, not more. And the ECA only grants Congress any authority over states’ certified electors in the precise circumstance of a state certifying more than one slate of electors to the Electoral College, as happened occasionally over the last two centuries — but has not happened in 2020. In that case, and only in that case, can Congress decide only which slate of electors to count. Congress has no authority under either the ECA or the Twelfth Amendment to refuse to count a state’s certified electors, and the Vice President has no role in either case except to preside over the joint session.

Trump’s tweet raises another question, however:

Trump claimed that the New York Times’ report on Pence balking at Trump’s plans was fake news. It does sound as though Trump’s still worried, though, and the Washington Post’s follow-up sounds as though he has good reason to fret:

Vice President Pence and his team have huddled for hours with the Senate parliamentarian. They have studied historical examples of other vice presidents who have presided over election results.

And they have begun anticipating the ire of President Trump — likely to come in the form of angry tweets — in the aftermath of Wednesday’s certification of the electoral college vote count before a joint session of Congress. …

Pence’s team views the vice president’s role as procedural and limited, not unlike an umpire calling balls and strikes but ultimately hemmed in by the rules of the game. Trump, meanwhile, has expressed a desire for Pence to use Wednesday’s session to overturn the election results and snatch victory from President-elect Joe Biden — a stunning subversion of democracy that Pence has no authority to carry out, even if he so desired.

It seems very clear that there is anything but “total agreement” between Pence and Trump. Hence, today’s tweet from Trump, which seems designed to put pressure on his VP as the joint session opens today. It won’t help, though, to pressure Pence to deliver the impossible. It’s simply not going to happen.

Pence might be considering what happened in Georgia in terms of what might happen in 2024, when he’s reportedly considering a run for the GOP nomination. If he marries himself any further to Trump’s conspiracy-theory rantings and the Trump inner circle of Sidney Powell, Lin Wood, and Rudy Giuliani, Pence might as well retire for good after January 20. To attempt to fulfill Trump’s demand now would be to utterly ruin himself for any future office, or really any future influence on the GOP. In four years, this is going to look a lot different, and Pence is smart enough to know it.