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pb's question to po, and you all, about what Pence should have done:

By HatetheSwamp
June 23, 2022 8:31 am
Category: Law

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You probably remember that pb's been pointing out all along that what Trump attempted to do on January 6 was rooted in the dictates of Electoral Count Act of the Electoral Count Act (1887).

So, po. Do you think it would have been legal...in compliance with the actual law...for Pence to do what Trump wanted?

Legal.
Not nice.
Not wise.
Not traditional.
Just legal.

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Comments on "pb's question to po, and you all, about what Pence should have done:":

  1. by Donna on June 23, 2022 8:36 am
    You're asking my wife, but based on what every legal expert I've listened to has said that it would have been illegal.


  2. by Donna on June 23, 2022 8:37 am
    So my answer is no.


  3. by HatetheSwamp on June 23, 2022 8:59 am

    I ask because po, especially, seems convinced that Trump is an evil SOB and, the law be d@mned, she'd oppose what he wanted to do.

    The question I'm asking is the question of why. I don't think po cares about the why part. That's why demanding a one word reply ruins what could have been a lively conversation.

    None of us are attorneys but, as I've said, right wing talk radio was all about the Electoral Count Act for more than a month before January 6.


  4. by Donna on June 23, 2022 9:37 am
    Her answer would be the same as mine.


  5. by Curt_Anderson on June 23, 2022 9:46 am
    HtS,
    No, it would have been illegal.

    John Eastman intentionally misinterpreted the law as a last-ditch, desperate effort to keep Trump in power. Obviously the vice president's role is perfunctory and the vice president's role is not intended to overturn an entire election and the will of the American people.



  6. by HatetheSwamp on June 23, 2022 9:53 am

    Since you're not an attorney, Curt, I'm wondering how you know that. I know that you think of Eastman as a steaming pile of stink but I don't think that's adequate authority.

    If you have a link from a trustworthy source, I'd love to look it over.


  7. by Donna on June 23, 2022 10:23 am
    What's preventing you from researching that, Hts?


  8. by Curt_Anderson on June 23, 2022 10:29 am
    Commonsense should tell you that vice presidents do not decide who wins the presidential election. Dan Quayle understands it. Al Gore and Richard Nixon (in 1960) didn't avail themselves of the Eastman interpretation of the Electoral Count Act, because it was an illegitimate and illogical option.

    Like me, John Eastman may soon be a non-lawyer. He is under investigation by his state's bar association and his law license is in jeopardy. He lost his day job as a law professor at Chapman University. He pleaded the Fifth 100 times in front of the January 6th Committee. He coyly requested (but didn't get) a pardon from Trump.

    There are numerous laws of the books with clumsy and/or archaic language. For example there are laws that specify "man", "he", "his" and "him". Even if the language hasn't been cleaned up, we all understand that these laws now apply equally to women. Relatively recently, there was an old law in the Oregon statutes that had some racist language which would have excluded Black residents from some right.

    abovethelaw.com


  9. by Curt_Anderson on June 23, 2022 10:39 am
    HtS, I am not a lawyer, but she is.

    The Eastman memo was alarming. Legally speaking, it was also nonsense.
    The wild scenarios a Trump attorney dreamed up would never have worked out
    Perspective by Teri Kanefield

    Eastman detailed the plan for what would happen Jan. 6, the day Congress would count electoral votes. Under this scheme, Vice President Mike Pence would begin counting electors from the states alphabetically, “without conceding” that he was following the procedure outlined in the Electoral Count Act. When reaching Arizona, Pence would announce that “he has multiple slates of electors and so is going to defer decision on that until finishing the other states.” This, as Eastman intended, would be “the first break with the procedure set out in the [Electoral Count] Act. ”

    Even if Pence had agreed to go along with this scheme — which he didn’t — the plan would have gone off the rails right there because, in fact, no states put forward alternate slates of electors. The “alternate electors” were Trump allies claiming, without authority, to be electors. Members of Congress would have, therefore, objected immediately to Pence’s false statement and his refusal to count certified electors. Chaos would have ensued.

    But as Eastman envisioned the procedure unfolding, Pence would simply set aside the electors from seven states with “ongoing disputes,” and the assembled lawmakers would sit silently by.

    Then, according to Eastman’s memo, after counting each state and concluding with Wyoming, the last state in alphabetical order, Pence would announce that “because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.” Pence would then announce that Trump had won the majority of valid votes, whereupon he “gavels President Trump as reelected.”

    Eastman’s fantastic scenario is based on the laughable claim in his memo that the “Constitution assigns the power to the Vice President as the ultimate arbiter.” The idea is absurd on its face.
    washingtonpost.com


  10. by HatetheSwamp on June 23, 2022 11:01 am

    Ah, yeah, the middle of the road WaPo.

    Commonsense should tell you that vice presidents do not decide who wins the presidential election. Dan Quayle understands it. Al Gore and Richard Nixon (in 1960) didn't avail themselves of the Eastman interpretation of the Electoral Count Act, because it was an illegitimate and illogical option.

    On the level of common sense, right on.

    But, in our system, with three branches of government, it's the courts that determine who misinterprets the law...not a unipartisan committee of one House of the legislature.

    Looking back, I admire Pence for what he did. Still...


  11. by Curt_Anderson on June 23, 2022 11:32 am
    "it's the courts that determine who misinterprets the law..." --HtS

    If a person can afford it, they can take any case into court no matter how flimsy the legal argument and drag it out. That's Trump's modus operandi in business and life. He routinely rips off his suppliers and contractors by not paying or underpaying them for their services or product. Most people cannot afford an army of lawyers and protracted litigation to get what they are rightfully owed. Trump knows that.

    Trump wanted to use (abuse and misuse really) the courts to retain the presidency as has over 4,000 times in his private life.

    The second link is the language of the Electoral Count Act of 1887. Show us the wording that gives Mike Pence the right to decide who becomes president.
    usatoday.com
    law.cornell.edu


  12. by islander on June 23, 2022 11:45 am
    Hate-If you don't like the Washington Post, you don't have to read it.

    Teri Kanefield is a respected legal scholar. You can go right to her sight and read what she said about Eastmans's fantastic scenario based on a laughable claim. You probably won't care for her any more than you care for Heather Cox Richardson who is a scholar of American History.


  13. by HatetheSwamp on June 23, 2022 11:47 am

    Curt,

    I'll assume you misunderstand me.

    Unless the issue was addressed by a court decision, it's not up to you, or any progressive journalist, or even me, to determine what's a proper interpretation of a law.

    Had Pence done what Trump wanted, Biden or the Dems would have challenged the action in court. Certainly, the Supreme would have taken the case. I'm confident that you and I agree that the Court would have most likely have ruled against Trump.

    I truly admire Pence for his courage and integrity but, in the end, this is a nation of laws.


  14. by Curt_Anderson on June 23, 2022 12:09 pm
    HtS,
    I understood you. I merely disagree. I said as much. Most of us do not operate like Trump and commit and accept any wrongdoing unless and until a civil or criminal court deems it illegal. Laws do not cover every aspect of decent and moral behavior.

    Most of operate within the norms of society, Trump doesn't.


  15. by HatetheSwamp on June 23, 2022 12:14 pm

    You're probably not merely a Trump cynic. I bag you as a Trump hater.

    You ignore the possibility that Trump may have actually believed that stuff.


  16. by Curt_Anderson on June 23, 2022 12:22 pm
    HtS,
    You already admitted that what Trump wanted Pence to do violates commonsense.

    Even if Trump really believed that he was rightful winner of the last election, that doesn't excuse or explain attempting to use nonsensical legal arguments to retain power.


  17. by HatetheSwamp on June 23, 2022 12:31 pm

    This is a nation of laws, not of what the two of us may agree is common sensical.

    The reason that the judiciary is a coequal branch of government is so that individuals' (TDS?) notions of what makes common sense is tempered by the Constitution and laws generated by the legislature and signed by the executive.


  18. by Curt_Anderson on June 23, 2022 12:37 pm
    Yes, we are a nation of laws. We are also a civil society. We (most of us, anyway) do not the courts to inform us at every turn what is right and what is wrong.


  19. by HatetheSwamp on June 23, 2022 3:05 pm

    Tell all of your woke Blue MAGA colleagues who have promised us a Summer of Rage about our civil society...

    ...maybe not so civil after all, eh?


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