Special Counsel Jack Smith in another life could teach legal writing. His short sentences at the start of the US v. Trump 45-page indictment go right to the point of Mr. Trump’s January 6 conspiracies: “The Defendant lost the 2020 presidential election. Despite having lost, the Defendant was determined to remain in power.”
Then, in a single sentence, Mr. Smith in the first Count summarizes Mr. Trump’s attempt to defeat the Constitution he was sworn to uphold and the statutory Electoral Count Act (ECA) he was sworn to defend. Mr. Smith writes Mr. Trump conspired with others, “to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are counted, and certified by the federal government.”
Reading the indictment, one yearns to see the actual language of the Constitution and of the ECA Mr. Trump is alleged to have conspired to defeat. Bear with me a few paragraphs to recite it. First as to the Constitution there are the duties of the electors and of the Vice President. The electors “…shall make a List of all the Persons voted for …which they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate [the Vice President]. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority ….” (Art. II, Sec. 1). Thus, the cast votes of electors “shall then be counted” and the winner “shall be the President.”
Next, the ECA limits the role of the Vice President to oversee the count, stating his role “shall be limited to performing solely ministerial duties”. (Title 3 USC 15). Further: “The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” In other words, the Act explicitly states the Vice President’ s role is ministerial only, and he has no legal discretion over the electors. Nor to throw the election directly or indirectly to someone the official electors did not elect. Indeed, any attempt to do so violates the statute.
The ECA then states the Vice President “shall call for objections if any” signed by at least a fifth of the Senate and the House. In the last election, Congress, reconvened January 6, in the evening after insurrection by Trump voters had delayed proceedings. Congress voted down the objections posed to the slates of electors from Arizona and Pennsylvania. To be sure, the failed objections delayed proceedings further. Mississippi Senator Cindy Hyde-Smith supported the objections and the delay into the night they brought. Senator Roger Wicker to his lasting credit declined to join in. Mississippi Republican House members voted to object and delay also. Their objections and associated delays failed nonetheless. Vice President Pence announced the certified result that Joseph R. Biden won the 2020 presidential election on January 7 at 3:41 a.m. in the morning.
Even had objections to some electors been sustained, though, the ECA requires there be no delay in counting votes of the remaining electors. Rather: “When the two Houses have voted, they shall immediately again meet”. Any rejected electors are simply excluded from the count but the count goes on. Then the result of the elector’s votes “…shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States….”
Notice there was no lawful authority in the Constitution or the ECA for Mr. Pence, as Mr. Trump demanded, to delay the count of the electoral vote. Nor was there any lawful authority for a Vice President to disregard the vote of the electors and unilaterally declare Mr. Trump the winner. After all, there is no authority in the Constitution or the ECA to declare a King.
Mr. Trump stands accused of conspiring to defeat the Constitution and the black letter law of the ECA, the very pillars of democratic presidential elections in this country. Mr. Trump deserves a fair trial while being brought to justice--hopefully before the Republican Convention and certainly before the next election so citizens participating will know the outcome of the trial.
Vice President Pence told Mr. Trump he would not go along with Mr. Trump’s conspiracies to delay the electoral count. Nor would he yield to a demand to send the election in swing states to predominately Republican legislatures to decide. The Vice President refused Mr. Trump’s demand also to substitute false Trump electors in place of the official electors certified by state governors. Mr. Trump responded to the Vice President’s refusals, bellowing: “You’re too honest” (Indictment ¶90(c) p. 33). Mr. Trump thus confessed to his own dishonesty. It was Mr. Trump’s acknowledgment as well he was pressuring his Vice President to act illegally. It is indeed Mr. Trump’s signal confession going to the heart of his indictment.
Robert P. Wise is a Northsider.
