What affects the policy of this regime. Had Pence broken by the rules and history and taken control of the counting process, House Speaker Nancy Pelosi would likely have suspended the joint session, which relies on the consent of both houses of Congress. “With a stalled and incomplete count due to a standoff between Pence and Pelosi,” writes lawyer Ned Foley in a separate article on the Election Law Blog, “the Twentieth Amendment becomes the relevant constitutional provision.” Which means, in short, that by noon on January 20, Pelosi would become interim president of the United States. Pence would lose his authority as Vice President (and Speaker of the Senate) and the joint session would resume, with Congress affixing its seal of approval to Biden’s victory.
And let’s not forget that a series of moves of the kind envisioned by Eastman would spark national outrage. The “screams” wouldn’t come just from Congressional Democrats; they would come from the 81 million voters whom Pence would have summarily deprived of the right to vote. It is conceivable that Trump and his allies prevailed over mass protests and civil disobedience. But that would depend on military support, which, if General Mark Milley’s actions were any indication, would not have been available.
None of this should make you feel good or give you a sigh of relief. Consider what we know. A prominent and respected member in good standing of the conservative legal establishment – Eastman is a registered Federalist Society and clerk for Supreme Court Justice Clarence Thomas – plotted with the president and his Republican Party allies to overturn the election and overthrow American democracy under the Constitution. Yes, they failed to keep Trump in power, but they did manage to turn the pro forma counting process into an opportunity for real political struggle.
It has always been possible, in theory, to manipulate the rules to seize the power of the voters. Now that’s a live option. And with the right pieces in place, Trump could be successful. All he needs is a rival list of electoral votes from contested states, representatives of state and state legislatures ready to speak on his behalf, a favorable Republican majority in the either house of Congress and a sufficiently flexible majority in the Supreme Court.
As it turns out, Trump may well run for president in 2024 (he’s already amassing a significant war chest) with exactly that board in play. Republican state legislatures in states like Georgia and Arizona have, for example, , used fraud allegations to gain control of key areas of the election administration. Likewise, according to Reuters, 10 of the 15 Republican candidates declared for secretary of state in five swing states – Arizona, Georgia, Wisconsin, Michigan and Nevada – either declared the 2020 election stolen or asked authorities to invalidate the results in their states. It is also not unlikely that a Republican Party led by pro-Trump fanatics will win Congress in November next year and hold it until the presidential election and until 2025.
If Trump is, once again, on the ballot, then the election could turn on the handling of a ceremony that was, until now, a mere formality.
Here I will go back to where I started. If that happens, it would be a revolutionary change. In this world, voters, filtered by the Electoral College, no longer choose the president. It is less a question of the rule of law than of power, of who occupies the right positions at the right time, and above all, who can bring the military to their side.