How Mike Pence Fell Short on January 6

It’s easy to imagine that most Republican voters approved of former Vice President Mike Pence. They must have appreciated his loyalty to a president very different from himself. At times, Mike seemed the perfect V.P. But when it came to what was his most important responsibility as President of the Senate, Pence did not rise to the occasion, which was the certification of the 2020 presidential election on January 6, 2021.

On February 4, New York Post ran “Mike Pence says Trump ‘wrong’ about ‘un-American’ idea to overturn election” that reported on an event held that very day:

“I heard this week that President Trump said I had the right to overturn the election. President Trump is wrong. I had no right to overturn the election,” Pence told a gathering of the Federalist Society in Orlando, Fla.

“The presidency belongs to the American people and the American people alone. And frankly, there is no idea more un-American than the notion than any one person could choose the American president. Under the Constitution, I had no right to change the outcome of our election.”

Pence is correct; he had no “right” conferred to him by the Constitution to “overturn” the 2020 election. And if Donald Trump contended that he did, then Trump was indeed wrong. But none of that makes any difference, as Pence could still have nullified the “election.” (Scare quotes were used there because the 2020 “election” was riddled with so many illegalities, problems, and government failures that it can’t really qualify as an election.)

However, when Pence claims that “the presidency belongs to the American people and the American people alone,” he seems to be forgetting that it is the Electoral College that determines who the president is; that’s what Jan. 6 was all about. (Even if we had direct elections of the president by the People, one could argue that the presidency belongs to those who count the votes.)

On February 5, New York Post ran “Trump blasts Pence for calling him ‘wrong,’ for suggesting VP could overturn election” and it gets at the nub of the problem:

Trump bashed his vice president ahead of the Jan. 6 Capitol Hill riot for not having the “courage” to reject certified electors from Arizona, Georgia and Pennsylvania for then-President-elect Joe Biden.

If President Trump was actually urging Pence to “reject” just some electors, then he was politically naïve. Regardless of the outrageous improprieties in the 2020 elections, rejecting the electors of selected states while counting those of other states would inflame the nation. So what should Pence have done?

Last year, LewRockwell ran two articles of mine that explored Pence’s options on January 6. The first article, “Alexander Macris on the 2020 Battleground States,” ran on February 24, and it looks at the Constitution. The second article ran on March 17 and its headline tells one what it’s about: “What Pence Should Have Done on January 6.”

I think I made a decent case for what Pence should have done on January 6 last year and you might find the two articles edifying. But here’s the gist of what I advocated: Pence should have refused to open the certificates of all the states.

The operative law here is the 12th Amendment which commands this: “The President of the Senate shall… open all the certificates and the votes shall then be counted [italics add].” No one but Pence had the authority to open the certificates. And if the certificates aren’t opened, they can’t be counted.

Immediately after the above command, the third paragraph of the Amendment goes on to provide for what happens when the count does not produce a president, which is to “immediately” throw the election into the House of Representatives, (which is where the 2020 presidential election needed to end up).

Commentators on Pence’s dilemma have gotten hung up on words, as in whether he had the legal “right,” or “power,” or “authority” to “overturn” the election. Although Pence did not have the legal wherewithal to overturn the election, he did have the freedom to do so, all due to the constitutional uniqueness of his position. Had Pence taken such unprecedented action, there would have been no appeal and no recourse.

One thing I could have included in my second article is that Pence should have used the January 6 joint session to deliver a speech that itemized all the lawlessness in the 2020 election. It would be a rebuke of not only state governments but also of the U.S. Supreme Court, as well as the people assembled before him, the Congress. Pence could also have used the occasion to call for real election reform so that Americans can be assured that their elections are fair.

With the ongoing invasion at the southern border (two million last year from 140 nations), inflation at a 40-year high, tent cities of homeless folks all over the place, murder and other crimes on the rise, the disaster of the Afghanistan withdrawal, fentanyl and other deadly drugs flooding across the border, war on the horizon, and on and on, it should be evident to the decent and the fair-minded that on Election Day 2020 we Americans made some horrendous decisions.

That is, if Americans actually elected the current occupant of the White House. But there’s no evidence for that other than the claims made by the authorities. Is that enough “evidence” for you, or would you like a little proof?

Honorable and likable though he may be, by not taking the initiative outlined above, it’s fair to hang some of the blame for America’s precipitous decline over the last year on Mike Pence. Pence helped to legitimate the lawless 2020 elections which led to the ascension of our most destructive president ever.

Jon N. Hall of ULTRACON OPINION is a programmer from Kansas City.

Image: Gage Skidmore

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