On the chaotic day of January 6, 2021, it was not really clear what Donald Trump and his allies were trying to accomplish in challenging the confirmation of Joe Biden’s election in Congress, even as Trump incited a mob of his followers to assault the Capitol in the middle of those proceedings.
It was well known at the time (mostly because the vice-president released a statement about it that very day) that Mike Pence had rejected big-time pressure from Trump to use his position as the presiding officer of the joint session of Congress to deny Biden his victory and/or declare Trump the winner. But it’s only become clearer that disrupting Biden’s confirmation via Pence wasn’t just an outlandish idea quickly laid to rest — it was Plan A. Trump hadn’t given up on the gambit even as the fateful hour arrived. “If Mike Pence does the right thing, we win the election,” the president told his supporters just before they headed to the Capitol.
We’ve learned a lot in the intervening year about the days just prior to January 6 and what the various players in the drama were thinking. Not all claims about Trump’s strategy are terribly credible. (See former Trump staffer Peter Navarro’s recent assertions about “the Green Bay sweep,” a scheme he cooked up with Steve Bannon to delay certification of Biden’s win, which makes zero sense because of the Democratic control of Congress.) But we now know that behind the scenes the White House kept lobbying Pence to derail Biden’s confirmation up to the last minute, and Pence continued waffling, asking various advisers if there might be a way to succor the Boss without arrogating unconstitutional or illegal powers to himself.
The breadth and persistence of Trump’s reliance on Pence for salvation was made most evident by the famous Eastman memo, which first surfaced publicly in a book by Washington Post reporters in September 2021. The final version of this memo, clearly addressed to Pence, was dated January 3. It is indisputable that Trump approved of Eastman’s strategy, whose language and (such as it was) logic was echoed by the president on January 6.
Though Eastman laid out multiple scenarios for a Pence coup on January 6, all of them were based on an eccentric constitutional theory holding that the Electoral Count Act of 1887, which sets out procedures for the finalization of states’ electoral-vote counts, was an unconstitutional abrogation of the vice-president’s all-but-sovereign power under the 12th Amendment to decide which electors to recognize and count. The memo devotes a lot of space to giving Pence specious reasons to reject Biden electors from six states (Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin). Most crucially, Eastman offered Pence the choice of recognizing self-designated Trump electors from those states (definitely a reach) or just refusing to recognize any electors. The latter scenario could have produced a Trump victory on grounds that he won a majority of the recognized electors or thrown the election to the House on grounds that the Electoral College had failed to reach a decision.
Eastman also presented a cop-out option, to adjourn the joint session and throw the matter back to the states, which might have become more tempting to Pence as the events of January 6 unfolded:
VP Pence determines that the ongoing election challenges must conclude before ballots can be counted, and adjourns the joint session of Congress, determining that the time restrictions in the Electoral County [sic] Act are contrary to his authority under the 12th Amendment and therefore void. Taking the cue, state legislatures convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature.
This scenario is clearly what Trump had in mind when he said this to the mob on January 6:
States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice-President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.
And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.”
So we have it straight from the horse’s mouth that on January 6 he was still urging Pence to “do nothing” and “send it back to the states” before Biden’s victory could be confirmed, sweeping aside the timetable set out in the Electoral Count Act. As Eastman cynically noted, had Pence just gaveled the session adjourned, it might have left no immediate recourse for Congress:
The main thing here is that VP Pence should exercise his 12th Amendment authority without asking for permission — either from a vote of the joint session or from the Court. Let the other side challenge his actions in court.
It seems Pence may have still been wavering immediately before the joint session because his team consulted revered conservative legal authority Michael Luttig (for whom Eastman had once clerked) on the morning of January 6. Fortunately, Luttig rejected Eastman’s take on the 12th Amendment powers of the veep, and his views were incorporated into Pence’s statement just before the session began.
Patriotic legal thinkers and policy-makers who want to keep this nightmare scenario from recurring might want to spend some time burying Eastman’s “veep as God” construction of the 12th Amendment lest it rise again in 2024 or beyond. Legal scholar Matthew Seligman poured multiple shovels of dirt on it in an October 21, 2021, academic treatise debunking the whole outrageously dangerous notion. As he told me in an email: “The absurd theory that the Vice President has this monarchical power to decide the election has to be so widely and decisively rejected that no one within earshot of the Oval Office would dare utter it in the future. The final moment of truth should not come down to the conscience of a person who was told he had the power to install himself in office.”
But in the heat of the moment on January 6, after Team Trump’s many legal and political efforts to forestall his defeat had failed, swaying the famously sycophantic Mike Pence remained the only real play. They had run out of time to do anything else. And while this is speculative, it strikes me as likely that one of Trump’s chief motives in sending the mob toward the Capitol on January 6 was to put a final burst of pressure on Pence to “do the right thing,” perhaps by creating so much chaos in the electoral-vote-count process that an adjournment might seem reasonable.
In the end, Pence would not go along, leaving to the judgment of history whether he should be regarded as a great hero for rejecting pressure to execute an election coup or more of an ambiguous figure thanks to his previous loyalty to a scofflaw president. There was certainly every reason for Trump to hope against hope that Pence could at least be counted on to throw some sand in the gears of the process leading to Joe Biden’s inauguration on January 20. And that might be enough to constitute a “strategy” for a seat-of-the-pants presidency built on Donald Trump’s narcissism and the willingness of subordinates to tell him what he wanted to hear at any cost.
More on january 6, 2021
- Never Mind the Facts. Trump Fans Feel Like a Majority
- RIP ‘No January 6 Sedition Charges,’ the Right’s Favorite Trump Defense
- What Will It Take to Stop a 2024 Election Coup?