You may recall my post about the crackpot lawsuit brought by crackpot Texas congressperson Louie Gohmert before a federal judge that the president of the senate has broad powers to decide which electoral slates should be counted on January 6th when the joint session of Congress meets to certify the results of the presidential election. The odd thing was that Gohmert was citing as the defendant vice-president Mike Pence, the very person whom, in his role as president of the senate, Gohmert was saying should have these vastly expanded powers.
But the justice department has filed a motion on Pence’s behalf saying that the lawsuit should not be directed at vice president Mike Pence.
Pence argues that the legal issues raised by Gohmert, along with a slate of Arizona Republicans, should be addressed to the House and Senate (if they should be raised at all).
Pence later adds: “(A) suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction.”
Pence’s filing pointed out the irony of Gohmert’s argument. “Ironically, Representative Gohmert’s position, if adopted by the Court, would actually deprive him of his opportunity as a Member of the House under the Electoral Count Act to raise objections to the counting of electoral votes, and then to debate and vote on them.”
The Justice Department gave the White House a heads up earlier this week that the Pence filing was coming, according to a person familiar with the matter. Word was sent to chief of staff Mark Meadows that the department would be asking the judge to reject the lawsuit. White House counsel Pat Cipollone was also aware it was coming.
It’s not clear whether Trump, who remains furious at the Justice Department for its perceived inaction on voter fraud, was informed himself. He has taken an interest in Pence’s role during the January 6 proceedings, though Pence and others at the White House have tried to explain to him that it’s merely a ceremonial post.
This filing seems seems to suggest that Pence has decided that he wants to make clear that his role on January 6th is purely ceremonial and that he has no discretion, so that Trump’s base will turn not turn its wrath against him when he declares Joe Biden to be the duly elected president. As expected, yesterday the US district court judge Jeremy Kernodle dismissed the lawsuit without hearing the merits of the claim on the grounds that the plaintiffs lacked standing.
Kernodle, who was nominated by Trump and confirmed in the Senate by voice vote in 2018, wrote that Gohmert “alleges at most an institutional injury to the House of Representatives. Under well-settled Supreme Court authority, that is insufficient to support standing.”
As for the group of Arizona Republicans, who claimed that Biden’s electors in the state were unlawfully certified, Kernodle wrote that they “allege an injury that is not fairly traceable to the Defendant, the Vice President of the United States, and is unlikely to be redressed by the requested relief.”
But what Pence thinks is largely irrelevant. What matters is what Trump will tell him to do and so far that is a mystery. Going by past performance, Trump will not do anything until close to the deadline and will then take some action that creates confusion. But while there may be some suspense about what kind of drama might ensue on that day, there really is no doubt about the outcome.