We know that January 6th is the day when Congress is scheduled to meet to ratify the Electoral College votes and declare Joe Biden the winner. At his first post-election news conference held just before Thanksgiving, when asked if he would leave the White House if the Electoral College declares Joe Biden the winner, Trump replied, “Of course I will. Of course I will. You know that.” However that was his only concession to reality and since then he has continued to deny the fact that he lost.
Given that the congressional session on January 6th should be a purely ceremonial event, like the Academy Awards without the suspense about who won, I was mystified when Trump tweeted on December 27th the following:
See you in Washington, DC, on January 6th. Don’t miss it. Information to follow!
— Donald J. Trump (@realDonaldTrump) December 27, 2020
It turns out that he has been urging his followers to gather in Washington, DC on that day to as part of a nationwide March for Trump. Trump has asked followers to “Be there, will be wild!”
Peter Navarro releases 36-page report alleging election fraud 'more than sufficient' to swing victory to Trump https://t.co/D8KrMHnFdK. A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!
— Donald J. Trump (@realDonaldTrump) December 19, 2020
After they arrive there they will … do what exactly? It is not clear. Is Trump telling us that Mike Pence might do something on that day other than announce the result? Trump may be hoping that something may come of a maneuver that he discussed with a dozen or so Republicans congresspeople recently at the White House who have vowed to raise objections to the process and generally try to gum up the works. One of the leaders of that group is Texas congressperson Louie Gohmert, the perennial favorite for the title of the stupidest member of congress.
The processes to be gone through on January 6th are governed by the 12th Amendment to the US constitution which says that after the electors sign the list of votes for president and vice president during the meeting of the Electoral College that took place on December 14th, those results are transmitted in sealed envelopes to the president of the senate, who is the vice-president, and in this case is Mike Pence.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed
The vice-president’s role was made even more explicitly ceremonial by an 1887 federal law known as the Electoral Count Act that introduced four people known as ‘tellers’ who would do the actual counting and give the vice-president the result to announce.
Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses.
Thus the vice-president’s role is similar to a presenter at the Academy Awards who just reads the names in the envelope given to them and is not the one who decides the winners.
But now Gohmert, along with the eleven people who were on the Republican slate of Electoral College voters from Arizona, wants to change that. Since that state was won by Joe Biden, those electors are not the ones who were represented in the Electoral College. Gohmert and his crew have filed a lawsuit saying that the 1887 law is unconstitutional and that the vice-president has a huge amount of discretion in what he can do, including deciding which slates of electors to accept. In a statement on his website, Gohmert says, “We are asking the court to uphold the powers laid out in the United States Constitution which grant the Vice President the exclusive authority and sole discretion in determining which electoral votes to count. As outlined in the filing, the Electoral Count Act is unconstitutional because it directs Vice President Pence to legitimize electoral votes in violation of the Electors Clause and limits or eliminates his Twelfth Amendment authority to determine which slates of electors should be counted and which, if any, may not be counted.”
The odd thing is that their lawsuit is directed against Pence in his role as president of the senate. I am sure that Trump would love Pence to be able to do just what is being asked of him, but things get messy in a case where the defendant essentially agrees with the plaintiffs. Legal experts think that the federal judge assigned to the case, although a Trump appointee, will throw out the lawsuit on all manner of technical grounds, including lack of standing, before it can even be judged on its merits. That is likely to happen well before January 6th. But that does not mean that Trump and his supporters will not have Pence take some sort of ridiculous stand on that day and Pence is too much of a toady to resist.
So, all in all, it should be quite a day.