What if? Path was uncertain if Pence objected to Biden's win
WASHINGTON — In the weeks leading up to Jan. 6, 2021, an elite group of House Democrats gathered to contemplate a question that their predecessors could have hardly imagined: What would they do if the vice president tried to overturn a free and fair election?
The group assembled by House Speaker Nancy Pelosi, D-Calif., included some of the most agile legal minds in the House — California Reps. Adam Schiff and Zoe Lofgren, Maryland Rep. Jamie Raskin and Colorado Rep. Joe Neguse. They spent weeks studying the rules for the Jan. 6 certification, gaming out what they would do if Vice President Mike Pence took the unprecedented step of trying to halt Joe Biden's victory in the Electoral College.
They never came up with a perfect answer.
In the end, the planning was merely a precaution. Pence did not bend to President Donald Trump’s extraordinary pressure to intervene and presided over the count in line with his ceremonial role. He announced the certification of Biden’s victory before dawn, hours after a mob of Trump’s supporters violently ransacked the building.
Still, the idea that the Electoral College process could have been manipulated added a grave new dimension to the Capitol insurrection, heightening the danger the nation faced as Trump pressured lawmakers and election officials around the country to change the results. Democrats, and some Republicans, warn that peril is only growing as Trump and his allies wage a nationwide campaign to seize hold of the machinery of elections.
If Pence had tried to overturn the election, "there really weren’t good, clear answers because there was no precedent,” said Schiff, who believes it is still an open question as to how Congress could prevent an illegal attempt to block a legitimate election in the future. That is “why our two-century-old experiment in democracy is not assured,” he says.
One possible remedy is an update to the Electoral Count Act of 1877 — which, along with the Constitution's 12th Amendment — governs the process. Changes to the law could clarify that the vice president’s role is strictly ceremonial or make it harder for lawmakers to challenge the electors. The bipartisan House committee investigating the insurrection is working on a proposal.
But Democrats also acknowledge the limitations of their plan. While Senate Minority Leader Mitch McConnell, R-Ky., said this week he’s open to revisiting the law, and there are discussions underway in both chambers, passage is far from guaranteed in a Congress where a majority of Republicans remain aligned with Trump. Future Congresses could undo any changes, and bad actors could still try and break the rules.
The Electoral Count Act is poorly written and vague, Lofgren said. “And because it’s vague, it is vulnerable to misuse.”
“The truth is, if somebody wants to overthrow the government, pull in the military and take over the Congress, reforming the Electoral Count Act is not going to stop it,” Lofgren said. “But we need to do our best to shore up the law and protect our country’s democratic republic.”
An overthrow of American government, with Pence as the key player, was exactly the dire scenario the Democrats were preparing for.
It wasn’t until the morning of Jan. 6, when Pence released a statement declaring he had no power to reject the electors, that lawmakers were able to breathe easier. And his resolve held even as rioters chanting “Hang Mike Pence” attacked the Capitol.
Trump was trying to break down the most fundamental U.S. institution of all — the peaceful transition of power.
“If you’re resolved to believe that your side wins, no matter what, then you will find a way to run roughshod over any rule that’s in your way,” said Raskin, who discusses the insurrection and its aftermath in a new book released this week, “Unthinkable.”
While there were many uncertainties, the Democrats were prepared for multiple scenarios if Pence tried to shut down the count or unseat certain electors. The four lawyers thought about who would object, how an objection would work, how they would call votes. Pelosi participated in most of the meetings, signaling the importance of their task.
Under normal order, the House and Senate convene separately to debate and vote when there are objections to a state's electoral college certificate. Republicans made clear they would challenge Biden's win in several states, but the effort was doomed to fail.
McConnell, then the Senate majority leader, had made clear that he would vote to certify Biden’s win, and most of his caucus had signaled they would follow his lead. And the Democrat-controlled House was sure to uphold the results.
But if Pence tried to usurp the process, the road was more uncertain.
In his book, Raskin discusses the devastating death of his son by suicide just a week before the insurrection and how his grief became intertwined with the trauma of the insurrection. He writes about his conversations with Pelosi that week, and her words to him ahead of the debate as they contemplated the steps ahead. “This is going to be tough,” Pelosi told him. “In this business, you have to know how to take a punch and you have to know how to throw a punch.”
The group had “answers, arguments, plans and directions ready” if Pence tried something, Raskin writes. Among them were “immediate appeals to the House Parliamentarian, objections, moves to adjourn, and new procedural motions to restore the vote-counting role of Congress.”
In the end, the most likely outcome was that the Democrats would have called votes to reject the vice president’s actions. They believed they would have had enough votes to do so, but “the truth is that there might have been a power struggle between the Congress and the vice president at that moment,” Raskin said in an interview.
Schiff says it was their view that House Democrats’ majority, at the very least, could have stopped the vice president from trying to overturn Biden's win. “But how that would be accomplished was still, I think, unclear,” he said.
As the Democrats strategized, so did Trump, consulting with constitutional law professors and analyzing Pence’s options with his inner circle of advisers as he amplified false claims about widespread fraud and pressured state officials to act on his behalf.
One possible — and illegal — scenario was for Pence to try to unilaterally reject the electors from swing states in order to shift the balance to a Trump victory or throw the question to the House, where congressional delegations would decide the presidency.
Neguse said another concern was whether Trump’s allies would try to draw out the debate so that Trump could argue that the count wasn’t conducted on Jan. 6, as is set out by law. In order to finish quickly, and make clear they were not deterred by the attack on the Capitol, Pelosi and McConnell called the joint session back into session that evening as soon as the insurrection was cleared.
“One thing we were certain of, was that it was critical for us to complete the electoral count certification on Jan 6,” Neguse said.