Like many people, I watched the Republican presidential debate on Aug. 23. Without Donald Trump, it lacked some fire power, but it was enlightening, nevertheless. Some stood out, some stood still. But by far, the biggest loser was Mike Pence, political has been and White House never will be.
Pence was a failed governor of Indiana headed to obscurity when rescued by team Trump. He was largely undistinguished as vice president, culminating with his losing debate performance to, of all people, Kamala Harris. His overt religious zeal, while commendable, is often excessive. He did however have an appropriate loyalty to the Trump administration, at least up to the end when it counted the most.
At the debate, in between taking unjustified bows for Trump successes, he answered questions about the activities of Jan. 6 by simply saying, “I followed the Constitution.” But of course, in this day of lazy journalism, this follow up question was never asked: “Sir, tell us, which section of the Constitution did you follow?”
The truth is that the constitutional role of the sitting VP regarding votes in a presidential election is anything but clear. The 12th amendment, passed in 1804, gives some but not mandatory guidance. It assigns the VP the duty to open and count the votes from the members of the Electoral College. What is not clear is the amount of discretion that the VP possesses to reject contested electors or delay the count.
The Electoral Count Act of 1887 gives some guidance, allowing the VP to declare that disputes regarding electors can cause a slate to be ruled invalid, at least that is the untested theory, having never been judicially reviewed. The issue is the degree of ambiguity in the Electoral Count Act as to the powers of the sitting vice president. Some have contended that the Act can be interpreted to give the VP power enough to nullify slates of contested electors. No Supreme Court precedent guides, nor restricts.
Professor John Eastman is a distinguished lawyer, author, former law school dean and recognized Constitutional scholar. Using his research and background, he authored the memo that put forth the Trump election challenges. It incorporates not only his own work, but theories from uber liberal Harvard professor Lawrence Tribe. It is creative, aggressive, and zealously represents his client, as he is ethically bound to do.
If Pence wished not to be involved, he could have stepped aside and allowed the president pro tem of the Senate to preside. There was nothing illegal, immoral or unethical about the Eastman proposal. It just needed the same amount of courage at the end as the degree of innovation at the beginning.
While some might contend the Electoral Count Act contains no discretion for the VP, it is well to note that after the 2020 election – when the Democrats got complete control – the Act was amended to expressly state that the VP‘s role is ministerial only, with no discretion. The need to change is an admission of a problem in the original and an admission of the validity of the Eastman proposal.
If Pence had followed the Eastman proposition, it would have had the dual effect of lowering the number of electors needed for a majority from 270, as well as involving the provisions of the 12th Amendment, which states that where no candidate has achieved majority, the election reverts to the House of Representatives where each State is given but one vote. Under either outcome, since by a vote of 27 Republican states to 23 Democrat states, Donald Trump would have been reelected. Pence was not and is not a hero; he is someone who was called to be on the stage of history but took the coward’s pass.
The violence of Jan. 6 at the Capitol was preventable if only the parties charged with its protection – D.C, police, the Speaker of the House, the Capitol Police – had done their duty and reacted to the vast advance warnings in proper fashion. The day would have been sober, productive and celebrated. Instead, it was used to indict those who only advised a client, and a client who took the advice – a foul prostitution of basic American liberties.
Following the election in 2016, more than two dozen Democratic congressmen boycotted Trump’s inauguration, claiming he had stolen the election and was an illegitimate president, a false claim echoed by Hillary Clinton, Jimmy Carter and others. But they have not been indicted…yet. Prior to that date, dozens of objections were filed to the Trump slate of electors, attempting to overturn the results of the November election. Had the Eastman theory then belonged to the Democrats, rest assured that crooked VP Joe Biden would have used the nuclear option to force in President Clinton II. Now, Professor Eastman faces prison and disbarment for thinking out loud and doing his duty as he saw it to be. If creative lawyering is now a crime, burn the Bill of Rights. The Constitution must apply to all, even Donald Trump.
The Washington Post arrogantly has as its masthead, “Democracy dies in Darkness,” as they then do all they can to erase the light of freedom. The truth of what went down surrounding Jan. 6, 2021, needs to come out, and then all the hysteria of a conspiracy will die in the antiseptic sunshine of truth. It is the best and only way to save the Republic. Be not afraid.
John J. Hopkins is a practicing attorney in Alton, Ill., with 45 years of courtroom experience in southern Illinois. He also is a columnist at the Madison Record.