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June 20, 2022

In Brief: Mike Pence, January 6, and the Constitution

The former vice president showed courage, but it was the Constitution that crushed Trump’s schemes.

Former federal prosecutor Andrew McCarthy has done excellent work detailing the collusion by Hillary Clinton and others to take down Donald Trump. His book, Ball of Collusion, is a must-read for anyone who wants the whole story.

When it comes to the events of January 6, 2021, McCarthy goes further than we would regarding impeachment of Donald Trump, including calling for him to be barred from holding office in the future. Yet he also utterly rejects the Democrats’ preposterous “insurrection” charges and he has slammed Nancy Pelosi’s sham committee.

Which brings us to his commentary on former Vice President Mike Pence and his role on January 6. McCarthy provides a lot of food for thought on the constitutional questions at play:

The proceedings [last Thursday] illustrated Pence’s heroism as the president willfully provoked anger at the vice president among Trump supporters who had been deluded by “stop the steal” — including violent mobs who stormed the Capitol as Pence convened with Congress, some baying for Pence’s blood even as the mob forcibly besieged security forces.

The hearing featured two witnesses: J. Michael Luttig, the distinguished former federal appellate judge, and Greg Jacob, an impressive lawyer who served as Vice President Pence’s chief counsel. Guided by committee questioning, they took aim at John Eastman, the former Chapman Law School dean who was Trump’s private counsel and constitutional law guru in the aftermath of the election. It was Eastman who developed the far-fetched theory that Pence could control the outcome of the election — or at least give Trump a chance to swipe an election he had lost. …

Judge Luttig, for whom Eastman served as a law clerk, analyzed Eastman’s theory in a now-famous Twitter thread the day before the January 6 joint session of Congress, concluding that it was wrong at every turn. “The only responsibility and power of the Vice President under the Constitution,” he wrote, “is to faithfully count the electoral votes that have been cast.” Luttig’s decision to go public with his well-founded views surely stiffened Pence’s resolve to resist Trump’s pressure.

McCarthy goes on to restate the illegitimacy of Pelosi’s inquisition, but he also identifies some of the key players in the line of questioning about Pence’s role, which was an interesting component of the hearings.

In sum, the committee’s presentation of evidence and witnesses is very effectively demonstrating that President Trump’s actions were indefensible, that he is unfit for the presidency, and that he should not only have been impeached but removed and disqualified from future office. And perhaps he would have been if the House, instead of politicizing Trump’s impeachment in an effort to tar all Trump supporters as white supremacists, had done back in early 2021 the investigation that the committee is doing now. Still, the fact that Trump and his circle had monstrous ambitions does not prove that they had realistic prospects of actuating those ambitions.

Part of this lack of prospects had to do with simple math:

As even the testimony at the hearing demonstrated, Pence was not asked to declare Trump to be the victorious president. He was asked to discount the electoral votes of a handful of states, which at most would have thrown the election to the House, where it is highly unlikely that Trump would have prevailed. Though Republicans nominally had a 26-23-1 advantage in congressional delegations, he would almost surely have lacked the votes. Cheney, for example, would surely have cast Wyoming’s vote for Biden. (That’s not a knock on Cheney; I would have done the same thing since, you know, Biden won.) The Republican edge in some states was thin, and many Republicans would have voted against Trump because there was no evidence of widespread fraud. (This, I must point out, is a wrongheaded theme of the committee’s: the notion that, just because Republicans had majority control of congressional delegations or state legislatures, they would perforce have voted in lockstep unanimity for Trump. They’d never have countermanded the vote of the people who elected them, even if Trump’s popularity nationwide hadn’t sunk like a stone when, in contempt for patriotic American tradition, he refused to accept defeat with grace.)

Note here that there is a disagreement on the Right about what “fraud” means.

McCarthy ultimately concludes it wasn’t math or a few brave individuals who stopped Trump, but the U.S. Constitution.

The Constitution crushed the former president. And while such people as Pence and Jacob showed great fortitude, their determination was undoubtedly annealed by the fact that there was no chance they could have pulled off what Trump tried to bully them into doing. The Framers ingeniously divided authority. It is so diffuse that no one actor can steal the presidency. To repeat one of my favorite observations about our system: We hope and expect to get honorable people in positions of power, but we don’t rely on it — we rely on the Constitution’s separation of powers, its checks and balances.

Trump’s presidential legacy was full of good things he achieved for the country. However, the fact that Democrats’ response to January 6 has been so disgraceful does not mean Trump was faultless on that day. Far from it.

Read the whole thing here.

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