Suddenly, the United States approaches a juncture no American anticipated: The Pence Moment.
Next week, the Vice-President, who derives virtually no powers under the Constitution or in 232 years of history, will be at the centre of the principal American drama of the age. Mike Pence – at once deeply devout and deeply loyal to President Donald Trump – must decide whether to make the official final announcement of the election of Joe Biden.
This is a decision about mathematics. (Mr. Pence is adept at that science; as governor of Indiana, he repeatedly presided over balanced budgets and saw that the state’s debt and unfunded liabilities were among the smallest in the union.) It is a decision about ethics. (He is a prayerful Christian and was part of a White House Bible study group.)
It is also a decision with immense political implications (He understands the vicissitudes of politics; he accepted Mr. Trump’s invitation to be his running mate when other politicians declined the offer as a route to political perdition).
The mathematics are clear; Mr. Biden won both the popular and Electoral College votes. The ethics are clear as well; the states have reported sufficient electoral votes to deliver the presidency to Mr. Biden.
It is the politics that are difficult.
If he in effect certifies the defeat of his patron, Mr. Trump, he will assure the resentment of the Trump base, which he might otherwise claim in a possible 2024 presidential campaign. He would also cultivate the enmity of Mr. Trump, who has repeatedly and viciously spurned those who have turned from loyalty to apostasy.
But if he refuses to announce Mr. Biden’s triumph, he will court historical obloquy and spawn a constitutional crisis that could launch the United States into unprecedented and dangerous political, legal and cultural upheaval amid a raging health emergency.
’'The Trump people are asking Pence to do crazy stuff,’' said Laurence Tribe, the Harvard constitutional law expert. “He doesn’t have the power they think he has.”'
Difficult moments of any sort, let alone ones with historical consequences, rarely come to a sitting vice-president.
The vice-presidency is so lowly an office that Thomas Marshall, who held the office under Woodrow Wilson (1913-1921), once spoke of a man who had two sons – one went to sea, the other became vice-president and neither was ever heard from again. John Nance Garner, who was Franklin Roosevelt’s first vice-president (1933-1941) is remembered, if at all, for saying the office was “not worth a bucket of warm spit,” though when he issued that critique, he referred to a different bodily emission.
Indeed, the only duty America’s founders devolved to this lowly office – which so frustrated Lyndon Johnson (1961-1963) that his aides invented tasks to keep him from serious depression – is to preside over the Senate.
It is a largely ceremonial role, and from the first person to hold that office, John Adams, to Mr. Pence as the latest, it is a role so insignificant that vice-presidents hardly ever deign to perform it. In that role, they do have the power to break ties in the Senate, but that is rare; Mr. Pence did that 13 times in four years, but 12 vice-presidents, including Mr. Biden in his eight years in the office under Barack Obama (2009-2017), did not do so even once.
But as the presiding officer of the Senate, a combination of Article II of the Constitution, the 12th Amendment and the 1887 Electoral Count Act sets out his role in the official designation of the new president. The fact that these provisions are written in a mix of active and passive voices only serves to muddle the issue further.
It is in that bit part that some Trump loyalists hope that Mr. Pence will reject some state vote reports or help push some state disputes to the House and Senate. GOP Senator Josh Hawley of Missouri, himself a potential 2024 candidate with an eye on the Trump base, said Wednesday morning that he would challenge some vote reports, a move that itself would prompt House and Senate votes on Jan. 6. That last, desperate move will almost certainly fail.
It is a long shot, but Mr. Trump, in politics if not on the golf course, has benefited from the long shot before.
“The only power he is given in this role is to receive the electoral votes and to open them,” Joel Goldstein, an authority on the American vice-president and an emeritus law professor at St. Louis University, said in an interview.
“Getting the votes and opening them doesn’t give him any power beyond the ministerial, which is consistent with the checks-and-balances theory of the Constitution. He can’t even open them in his office. He has to do it in public, four tellers do the count, and the vice-president merely reports the vote. It would be absurd to give one person the enormous power to make any kind of dispositive ruling.”
It may be absurd, but it is immensely awkward as well.
It was Mr. Biden who, as vice-president in 2017, fielded objections to electoral votes won by Mr. Trump – but ruled them out of order. Similarly, vice-president Richard Nixon, who narrowly lost the 1960 election to John F. Kennedy, ruled in favour of three contested Hawaii electoral votes for Mr. Kennedy rather than a slate for him. Forty years later, vice-president Al Gore tossed aside efforts by his supporters to object to the electoral votes from Florida that swung the election to his rival, George W. Bush, in a contest that went into 36 days of bitter overtime.
“It was hard for him,’' said David Morehouse, who today is president of the Pittsburgh Penguins hockey team but who in 2001 was a close Gore adviser and was with the vice-president that difficult day. “In our minds, we won Florida. We knew we had the numbers. But Gore worried about the delicacy of democracy and the destabilizing effect of doing anything but letting the matter be settled for Bush.”
In an article he wrote last year in the Ohio State Law Journal, Mr. Goldstein described the vice-president’s role as being a “ventriloquist’s dummy.’' In this case, Mr. Pence also is a lame duck.
All the members of the House and the Senate who assemble in the Capitol for this moment have either been recently elected or have either two or four years left in office. Mr. Pence’s term has only two weeks remaining.
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