Got far down in the weeds of an obscure but important issue at New York this week:
The now-notorious Eastman memo — the script Donald Trump gave to Mike Pence for overturning the election results on January 6, 2021 — was potentially more dangerous to our nation than the rioters he incited to storm the building. The document provided a spurious, but convenient, constitutional rationale for Pence to abuse the authority granted to him in the 12th Amendment to tabulate electoral votes as part of a pro forma process for confirming Joe Biden’s election. According to Eastman, a lawyer on the president’s legal team, Pence had the lordly power to disregard state-certified electors, ignore the procedures spelled out in the “unconstitutional” Electoral Count Act, and either hand an unearned victory to his own ticket or kick the election into the House. Pence decided not to go there, though he seems to have strongly considered it.
I have feared that the attempted 2020 electoral coup may have been a dress rehearsal for Trump. But no matter what happens in the 2022 and 2024 elections, there will be one important change in the scenery when a joint session of Congress convenes to count electoral votes in January of 2025: Instead of Republican Pence, Democrat Kamala Harris will preside. As Russell Berman notes in The Atlantic, there’s a quiet debate underway as to what role she might play if Trump is the Republican nominee and tries again to steal the election:
“Should Trump or his acolytes try to subvert the 2024 election, the last Democrat with any power to stop the steal — or at least try to — would be Harris. ‘She’s certainly going to have quite a job on her hands on January 6, 2025,’ Laurence Tribe, a Harvard law professor and liberal constitutional scholar, told me. Nine months ago, Tribe and other Democrats praised Pence for interpreting his authority narrowly, but the next time around, they might ask Harris to wield the same gavel more forcefully.”
This does not mean there is significant support in liberal legal circles for some sort of reverse-Eastman memo, with Kamala Harris refusing to acknowledge electors that Trump won, relying on some outlandish constitutional argument. As Matthew Seligman of the Campaign Legal Center told me, election lawyers are unwavering on this point.
“It’s critical to be clear that the Constitution does not vest the vice-president (as president of the Senate) with any unilateral authority at all to reject electoral votes or to resolve disputes about competing slates of electors,” he said. “That theory was the basis of the Eastman memo, and it is absolutely incorrect — whether it’s Vice-President Pence, Vice-President Harris, or any other politician of any political party.”
But the Electoral Count Act (which Eastman wanted Pence to disregard) does give some powers to the vice-president, while leaving certain potential issues maddeningly unclear, with virtually no court precedents to govern the sort of scenarios that could conceivably emerge in future elections. Distinguished Harvard emeritus professor Laurence Tribe told Berman it was clear the ECA gave the vice-president the power to reject “ungrounded challenges to state certifications.”
So if, hypothetically, a Republican-controlled Congress was tempted to supplant electors certified by the appropriate officials under a given state’s laws with some self-appointed alternative slate (like the fake Trump electors Eastman wanted Pence to recognize), Harris might be able to gavel such a move out of order. But as Seligman told me, the ECA does not give the veep “freewheeling authority to pick and choose how to count electoral votes, for good reasons or for bad reasons, and it would be dangerous if it did so.”
If a 2024 Team Trump (or anyone else) gets its act together enough to organize more regularly constituted electoral vote larceny — either by an entirely legal certifying authority that chooses to ignore or distort the popular vote, or by muddying the waters with a conflicting certification by a legitimate state body such as the legislature — there may be nothing Harris can do about it short of asserting powers she doesn’t have, and which a Republican Congress could formally deny her by challenging her decisions. But here’s the thing: The operations of the ECA in such uncharted territory are murky at best, as one might expect from an 1887 statute developed under the shadow of the very different disputed presidential election of 1876.
But prospects for fixing the ECA in the near term have been stalled by the lack of interest of congressional Republicans determined to “move on” from the embarrassing events of January 6. Perhaps the realization that Kamala Harris will be in the chair in 2025 will sink in enough to make them reconsider that hands-off stance toward placing clear limits on her power — power she will be strongly encouraged to exercise to the maximum extent if she’s defending not just another Democratic victory but democracy itself. For that matter, lawmakers in both parties need to understand the ECA is going to be a problem in future elections after which we have no way of knowing who will be sitting in the vice-president’s chair when the deal goes down, or which party will control Congress.
It’s true congressional Republicans may fear the wrath of Trump should he decide an otherwise non-controversial ECA fix could tidy up the muddy track he prefers in order to keep his legal and extralegal options open for a post–Election Day reversal of fortune. But if they value the Constitution and the rule of law, they may be forced to cast a very difficult vote to stop a Trump coup in 2025. Precluding at least some of this risk by clarifying the ECA at this early juncture might be an easier vote, and they can always tell their MAGA constituents they are just reining in Kamala Harris.
