Pence and January 6

I listened to this week’s excellent first episode of The Editors podcast, which I highly recommend — and I am grateful to MBD for his kind words about this column.

There is an interesting exchange, mainly between Rich and Charlie, about how serious the Capitol riot was. Not so much as a historical event — we can all agree it was egregious and is a blight. The question asked was how perilous it was as a threat to the republic. I am firmly in the camp that thinks it’s hyperbole even to refer to it as a “threat.” It was the logical, if unforeseen, conclusion of a random bunch of half-baked schemes led by Donald Trump to try to maintain himself in power. Even he knew it had no chance of success – he just wasn’t (and isn’t) a big enough man to admit he lost. The riot lasted a few hours, and it was whatever the opposite of existential is — to the point that Congress was able to reconvene in the barely damaged Capitol that very night to ratify Biden’s win.

I have thus been inclined from the first to say that the hero of the day was the Constitution. Trump and the hapless mob never had a chance against it. To say that is not to diminish the fortitude displayed by Vice President Mike Pence. His role is what I want to discuss here.

I was proud last month to be on hand in Chicago at an NR Institute seminar at which the former vice president was one of our keynoters. It gave me a chance, as part of a grateful crowd, to applaud him for his performance that day. If the Capitol riot is a blight on our history, and it is, Pence will go down in history as a great patriot because of the stakes. Yet, one can admire Pence for not wilting under Trump’s heat and still recognize that he really had no other choice.

The premise of Rich’s hypothetical question on the podcast was whether, if Pence hadn’t stood his ground, the riot would have been a much more serious threat. I think the question assumes a fact not in evidence: that Pence was the pivotal actor that day. It doesn’t account for the Democrats, as well as the majority of congressional Republicans who refused to play along with “stop the steal.” Thanks to Pence, they weren’t called on to flex their muscles, so we tend to forget about them. But their muscles were dispositive.

Even though standing up to Trump and his supporters was difficult, Pence’s course was clear because he had no real way of doing what Trump wanted him to do — namely, either invalidate the electoral votes of contested states or remand them back to those states for further proceedings. In his constitutional function as president of the Senate, Pence had no substantive role; he had the ministerial task, along with the rest of Congress, of witnessing the counting of electoral votes and hearing any objections (which would promptly have been voted down).

He did his duty because it was the right thing to do. But it was also the only thing to do as a practical matter.

The pro-Trump forces in the House and Senate — though, embarrassingly, not insubstantial — were easily outnumbered. No Republican challenge to a Trump-contested state won by Biden had the slightest chance of prevailing at the joint session. In fact, that is the cynical reason the pro-Trump forces were as numerous as they were — these pols were not anticipating a riot; they figured they’d preen for Trump’s base (and all the fundraising that entailed) without doing any real harm since they knew they were certain to lose.

The certainty of the outcome is also the reason that the only congressional objections anticipated were to the states that Trump was contesting. If there had been any possibility that Trump could knock out a Biden-won state or two, Democrats would not have stood by helplessly; they would have shown up at the joint session ready to contest Trump states. There was no such possibility, so Democrats didn’t bother — they were content to let the lawmakers who were colluding in “stop the steal” have their little romp, watch them be overwhelmingly voted down by bipartisan majorities in both parties, then call it a day. If the riot hadn’t happened, the session would have been no more memorable than, say, the play-acting done by Representative Jamie Raskin (D., Md.) in January 2017, when he hammed it up for the progressive base in objecting — baselessly and in violation of the rules — to some of Trump’s electoral votes.

Why are the Democrats just bit-players in the January 6 story? Because they didn’t need to be anything more than that. But if Pence had signaled even a hint of going Trump’s way and obstructing the counting of state-certified electoral votes, Democrats would have gone medieval.

Pence was not in charge of the ratification proceedings. Congress as a two-chamber body was in charge. Pence, at most, functioned as presiding officer of the Senate. On January 6, 2021, the Senate was nominally, narrowly controlled by Republicans; but on the business of the day — ratifying the winner of the 2020 presidential election — it had a substantial bipartisan majority that would have vigorously contested any effort to deny Biden. The most influential Republican in the chamber was not Pence, it was Kentucky’s Mitch McConnell, then the majority leader, who had conceded that Biden won and would have led the opposition to a coup.

Indeed, while an embarrassing number of congressional Republicans — about 106 in the House and twelve in the Senate – were willing to mak show and pose objections to the ratification of Biden’s victory, the majority of Republicans on Capitol Hill were just like the elected Republicans in the state legislatures and executive branches who, across the board, rebuffed all of Trump’s entreaties. No matter how much Trump tried to pressure them, not a single Republican-controlled government in any contested state tried to call the legislature into session into session to nullify their state’s popular votes. Not because they are great people, but because the genius of our system is that they answered to the people of their states, not the federal chief executive; ergo, indulging Trump would have been political suicide.

Similarly, in the independent judiciary, Republican-appointed judges — including those on the Supreme Court, some appointed by Trump, uniformly rejected Trump’s factually unsubstantiated and legally bogus claims.

In the Senate on January 6, Trump faced close to 90 percent opposition. No one knew that better than Pence. And then there’s the House, which was in Democratic control, led by then-speaker Nancy Pelosi. Pence is too good a man to have contemplated shredding the Constitution; but he is also a smart constitutional lawyer — well aware that if he had shown any sign of doing anything but bearing witness to the electoral count, Pelosi would simply have shut down the proceedings.

Had that happened, the popular vote would not have been nullified and the election would not have shifted to Congress. Pelosi would have had the numbers and the power to wait out a treacherous vice-president (which Pence wasn’t). In the interim, the House would have impeached Trump and that vice-president — and the numbers may well have been there to remove them in a swift Senate trial. Under the 20th Amendment, with Democratic control of the House and a working bipartisan majority against Trump in the Senate, Pelosi would have been in the driver’s seat.

Fortunately, we have never, since the amendment’s ratification, had to test its provision that “the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

Nevertheless, we know — and Pence knew — that if this process had been triggered, Pelosi would have controlled it in the House, and she’d have had a working bipartisan majority in the Senate. Playing this scenario out for argument’s sake (because Pence would never have recklessly provoked it), recalcitrant Republicans would almost surely have stood down so the joint session could reconvene, count the votes, and ratify Biden’s election — again, most of those people just wanted a show, not an actual crisis. Otherwise, Congress could have voted to make Biden acting-president under the 20th Amendment until sanity prevailed and his Electoral College victory was ratified.

Either way, there was no chance Donald Trump was going to be president for one moment after noon on January 20, 2021, when his term ended (assuming he hadn’t been swiftly impeached and removed if Pence had collaborated in a coup attempt). The Constitution does not leave it up to the incumbent to deign to leave office; his presidency lapses by law.

[Note: If, as I hypothesize here, the January 6 joint session had been shut down by Pelosi, Vice President-elect Harris’s victory as vice president, like President-elect Biden’s as president, would not have been ratified. Hence, another 20th Amendment scenario, in which the vice-president-elect becomes acting president, would not have been triggered.]

Trump went into the January 6 joint session with insurmountable opposition. By the time the riot broke out, and he failed to use his influence to make the rioters stand down, his support collapsed. But even before that, Trump’s gambit never had a chance. Pence knew that.

Mike Pence deserves our profound thanks and admiration for his stalwart defense of the Constitution on January 6. But the Constitution made the outcome inevitable. This never had a chance of being a successful coup attempt. It was utterly disqualifying of Trump, a betrayal of his constitutional duties in various ways. But an illustration of presidential unfitness is not the same as an existential threat to the republic.

It is not my purpose to mythologize the Constitution. I’d be very concerned about a coup attempt that had support of the commanders of our armed forces, as highly unlikely as that is. I think lawless Democratic presidents are significantly more of a threat than lawless Republican presidents because the constitutional guardrails that are fortified to keep the latter in check go rickety against the former — it’s just a fact that Democrats get away with more mischief, aided and abetted by the administrative state, congressional Democrats (who stick together in a way Republicans don’t), Democratic-appointed judges, the media, academia, and the popular culture.

Moreover, as I argued in my 2014 book, Faithless Execution, to be effective, our constitutional structure depends on a credible threat of impeachment. Yet, impeachment has become moribund in terms of its principal purpose. It is devolving into a partisan political gambit. And as a result, there are grave threats to the nation that the Constitution seems impotent to face down, such as the lack of border security and the lack of budgeting accountability that has led to our catastrophic, fast-mounting debt.

Those profound problems aside, though, the Constitution had January 6 covered. The republic was never under a serious threat. Our democracy was not “hanging by a thread.”