Mike Pence has a problem. As vice-president of the United States, he a constitutional responsibility to validate the election results, a grim duty that other defeated vice presidents including Al Gore and Dan Quayle have endured with stoicism. President Trump does not want Pence to gracefully announce in front of Congress and the world that Joe Biden won the election. After four years of obsequious subservience in which he has assiduously avoided any hint of separation from the president, he now has reached a moment of truth. If, as Axios reports, Trump would view Pence’s fulfillment of his duties as “the ultimate betrayal,” how can the vice-president avoid losing his presidential viability among Trump’s supporters? Could it be that after working so tirelessly to position himself as Trump’s successor, he finds it was all for naught?
The first thing to understand is the vice-president’s role in the process.
On December 14, the Electoral College met in all 50 states and the District of Columbia, and certified that Joe Biden and Kamala Harris were the winners of the 2020 presidential election, 306 electoral votes to 232. Trump watched the process unfold on television in the dining room off the Oval Office. He complained that the television networks were, according to the Associated Press, “treating it like a mini-Election Night while not giving his challenges any airtime.” That evening, he sacked Attorney General William Barr, presumably because he hadn’t used the Justice Department to overturn the election results.
The certification of the vote was only a midway point in the obscure process of determining the winner of the presidential election. It actually began months before Election Day when the Archivist of the United States sent a letter to the governor of each State and the mayor of the District of Columbia detailing their constitutional responsibilities and asking for a point of contact for receipt of the election results, which were then sent to the director of the Federal Register.
This was a two-part procedure, wherein the states first sent Certificates of Ascertainment to the National Archives and Records Administration (NARA). These certificates listed the Electors and the preliminary results of the states’ elections. The official results came on December 14, and the Certificates of Vote were due at NARA on that date.
Pence’s role begins on December 23, the deadline by which he and NARA must be in possession of the Certificates of Vote. If the Senate has not received copies of these certificates from every state by this date, Pence, serving in his capacity as president of the Senate, is required to request a copy from NARA. In other words, it’s his responsibility to make sure this request is not required or to make it if it is. Whether Trump knows it or not, this is Pence’s first opportunity to shirk or fulfill his constitutional duty. If Pence does ask NARA for any certificates, they must be delivered to the Senate no later than January 3rd.
Pence’s most visible role takes place on January 6, when Congress meets in joint session to count the electoral votes and he, as the President of the Senate, serves as the presiding officer. Here’s how that is supposed to look:
The President of the Senate announces the results of the State vote and then calls for any objections. To be recognized, an objection must be submitted in writing and be signed by at least one member of the House and one Senator. If an objection is recognized, the House and Senate withdraw to their respective chambers to consider the merits of any objections, following the process set out in 3 U.S.C. §15. After all the votes are recorded and counted, the President of the Senate declares which persons, if any, have been elected President and Vice President of the United States.
Axios reports that “Pence’s role on Jan. 6 has begun to loom large in Trump’s mind” and that Trump spent Monday evening meeting with a handful of House Republicans in the Oval Office to plot their strategy for objecting to the Electoral College votes. That plot to overturn the election will fail, and Pence will then be forced to declare Biden and Harris the winners.
It’s the same task Joe Biden performed in January 2017 to declare Trump and Pence the winners over Clinton and Kaine. There’s no way for Pence to avoid it, although he could, from the presiding officer’s chair, make a Trumpian statement about how unfair it is. It’s unclear what Trump would have him do instead. Not show up? In that case McConnell could appoint a senator to fill the chair and execute the announcement.
What is clear is that all eyes will be on Pence on January 6, and he’ll be in a no-win situation. The most loyal of all Trump allies will be scrambling to assuage the boss’s temper.