January 6 Committee Reminds Us One Time Mike Pence Did Right Thing. Once.

The House January 6 Select Committee is asking a lot of us this week, as we read their final report and write it up so you can spend this holiday blissfully hungover, or back at work, or doing literally anything else. Yesterday they asked us to accept the conceit that Bill Barr and his henchmen at the DOJ were heroes who resisted their demented overlord’s attempt to do a coup — after going along with every filthy racist and corrupt thing he did for four straight years. And today they’re asking us to treat Mike Pence as a great leader, who saved the Republic. Well, it’s a lot.

PREVIOUSLY ON!

Episode One: January 6 Report Is Real, And It’s Spectacular

Episode Two: January 6 Report: Trump Tried To Crime Boss State Legislators Into Stealing Election

Episode Three: The Fake Electors Plot As Basically Written By The Coen Brothers, Woodchipper Included

Episode Four: Trump Lawyers Tripped Jeff Clark As He Was Stumbling Backwards Into A Coup. Demand Medal Of Honor, Please.

But we knew that we’d have to play along with this game of Not All Republicans when we accepted the Editrix’s assignment to read the committee report, so, fine, let’s do this. Time for Chapter 5, “A Coup in Search of a Legal Theory,” starring that great patriot Vice President Michael R. Pence. (Hurl! Swallow! Repeat!)

On the morning of January 6, 2021, Vice President Michael R. Pence gathered his staff to pray. Vice President Pence and his closest advisors knew the day ahead “would be a challenging one.” They asked God for “guidance and wisdom” in the hours to come. No Republican had been more loyal to President Donald J. Trump throughout his turbulent presidency than Vice President Pence. The Vice President rarely, if ever, criticized his boss. But as January 6th approached, President Trump turned on his own Vice President.

Help Me Drink GIF by Searchlight PicturesGiphy

The story picks up in late December, after Trump’s efforts to overturn his humiliating election loss had failed in the courts, with state elections officials, with state legislators, and even with his own Justice Department. A bunch of lawyers and non-lawyers in his orbit were barfing out batshit memos insisting that actually the vice president had the right to unilaterally reject electoral votes and throw the election to Trump. This was utter gobbledygook, as even Coups 4 Dummies lawyer John Eastman had acknowledged in correspondence in October of 2020, writing, “The 12th Amendment only says that the President of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted. 3 USC § 12 says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the President of the Senate gets to make the determination on his own. § 15 doesn’t, either.”

But after Trump’s electoral loss, Eastman changed his tune, churning out memos suggesting that Pence should either (1) reject all the supposedly contested swing state electors outright, reducing the total votes needed from 538 and giving Trump the presidency; (2) point to the cosplay electors and say he couldn’t tell which group was legitimate, punting to the House to decide, where each state delegation would get one vote, and the Republican majority would ensure Trump’s reelection; or (3) call for a five or ten day pause during which swing state legislatures would be given the opportunity to reconvene and steal Joe Biden’s electoral votes for Trump.

The entire White House Counsel’s Office, as well as the Justice Department and even the Trump campaign’s “real” lawyers, said this was total bullshit. And yet Trump still made Pence sit down and listen to Eastman’s nattering for the entire week leading up to the election certification on January 6, 2021. Here’s how the committee described a meeting on January 4:

First, the Vice President could unilaterally reject the certified electors from several States won by former Vice President Biden, thereby handing the presidency to President Trump. Or, according to Eastman, Vice President Pence could delay the joint session to give State legislatures the opportunity to certify new electors loyal to the President. Eastman admitted, in front of the president, that both options violated the Electoral Count Act of 1887, the statute that sets forth the process for counting and disputing electoral votes during the joint session. Eastman admitted as much in a subsequent conversation with the Vice President’s staff as well. Therefore, President Trump knew, or should have known, that this scheme was illegal—in fact, it violated the Electoral Count Act and the U.S. Constitution. President Trump repeatedly demanded that Vice President Pence go through with it anyway.

Eastman even wanted Mitch McConnell to “demand normal rules (which includes the filibuster),” insisting that “we should not allow the Electoral Count Act constraint on debate to control.” In plain English, the Electoral Count Act allowed for two hours of debate if there were objections to any state’s electoral slate supported by a member of both the House and the Senate, and Eastman wanted Republicans to demand 60 votes to return to joint session and continue the certification. His plan was to create a “stalemate,” thereby giving “the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.”

It is hard to state how ridiculous this idea was. For one thing, while individual legislators were down to coup, no controlling portion of any state legislature had expressed willingness to do what Eastman wanted them to do — although that didn’t stop Trump, Eastman, and Giuliani from falsely claiming in public that they had numerous legislatures champing at the bit to steal electoral votes. Zero reputable lawyers endorsed any part of Eastman’s plot, and even he admitted that the Supreme Court would probably reject it 9-0. Indeed, US District Judge David Carter refused many of Eastman’s privilege claims in the fight over his emails because the lawyer made clear that they wanted to stay far away from any court where a likely ruling against them would blow their whole stupid coup out of the water.

And so it fell to nutjobs like Rudy Giuliani and that weirdo lawyer Kenneth Chesebro to polishing those turds up with a patina of legal mumbo jumbo:

On December 13, 2020, Kenneth Chesebro, a pro-Trump lawyer, sent a memo to Rudolph Giuliani, the President’s lead outside counsel, upon request from Trump Campaign official Boris Epshteyn. Chesebro laid out a “’President of the Senate’ strategy,” arguing that the “President of the Senate” (“he, and he alone”) is charged with “making judgments about what to do if there are conflicting votes.” Chesebro argued that when the joint session met on January 6th, the President of the Senate should not count Arizona’s electoral college votes for former Vice President Biden, “[b]ecause there are two slates of votes.”

Of course, there were not two legitimate “slates of votes” from Arizona. There were the official electors, certified by the State, and a group of fake electors convened by the Trump campaign.

Which reeks less than campaign “lawyer” Jenna Ellis’s plan for Pence to simply refuse to open the swing state envelopes.

In fact, Trump and Meadows were so desperate for someone — anyone! — to tell them their coup plot was legal that they tasked Trump’s former body man “Hot” Johnny McEntee with researching it, to hilarious effect. In December, Trump and Meadows told McEntee, the 30-year-old whom he’d made head of the Presidential Personnel Office in order to conduct an ideological purge of staff who were insufficiently MAGA, to give them his thoughts on the whole Pence electors thing. No, McEntee’s not a lawyer, but he was a quarterback at UConn, so obviously he felt comfortable opining that “the VP has substantial discretion to address issues with the electoral process.”

This wasn’t the only one-page analysis drafted by McEntee before January 6th. He later proposed a “middle path” in which he envisioned the Vice President accepting only half the electoral votes from six disputed States (specifically, Wisconsin, Michigan, Pennsylvania, Georgia, Arizona and Nevada). McEntee portrayed this as a way to avoid “disenfranchis-[ing]” States while still achieving the desired result: delivering a second term to President Trump. McEntee conveyed this memo to the President with a cover note reading, “This is probably our only realistic option because it would give Pence an out.” McEntee told the Select Committee that this judgment was based on his assessment that “it was, like, pretty obvious [the Vice President] wasn’t going to just reject . . . the electors or whatever was being asked of him at that time.”

Naturally this sent us to the transcript to learn more about McEntee’s interview with the committee, and, friends, it did not disappoint. The whole thing is gonzo, with that dingbat confessing to all kinds of impropriety and corruption, as his hapless lawyer howls that the questions don’t pertain to the matter at hand. But this exchange is the lord’s holy perfection: