Former President Trump’s theory that Vice President Mike Pence may have actually deemed Trump the winner of the 2020 election is legally baseless and amounts to ‘constitutional mischief’, the retired federal judge ruled Thursday. J. Michael Luttig at the January 6 committee.
Trump and his legal adviser John Eastman have repeatedly asserted that Pence has the power to reject electoral votes or temporarily suspend the electoral count while some states search for evidence of fraud, possibly handing the election over to Trump. This idea has “no theory or basis in the Constitution or laws of the United States,” said Luttig, who was appointed to the United States Court of Appeals for the 4th Circuit by President George HW Bush. to the committee.
“I would lay my body across the road before I let the vice president cancel the 2020 election” based on Eastman’s theory, Luttig said. “What this body needs to know, and now America needs to know, is that this was the centerpiece to nullifying the 2020 election.”
Rep. Pete Aguilar (D-Redlands), a member of the committee, noted that a vice president meddling in the voter count has no recent precedent in American history.
“For more than two centuries, vice presidents have presided over joint sessions of Congress in a purely ceremonial role.” Aguilar said, adding that he understands former Vice President Al Gore, who oversaw the tumultuous 2000 election count in which he lost the election to George W. Bush.
Eastman’s legal theory hinged on a flimsy interpretation of the 12th Amendment that expanded the powers of the vice president’s role, Luttig said. “The incumbent vice president of the United States has little, if any, substantive constitutional authority,” Luttig said. Just to be sure, though, some members of Congress have been pushing to reform the voter count law to formally clarify the boundaries of the vice president’s role. When Congress meets to certify the next presidential election, Vice President Kamala Harris will likely be in the same seat as Pence on January 6, 2021.