Which gets to the politics of this scheme. If Pence were to disregard the rules and the history and seize control of the counting process, House Speaker Nancy Pelosi would presumably have suspended the joint session, which relies on the consent of both chambers of Congress. “With a stalled and incomplete count because of a standoff between Pence and Pelosi,” the legal scholar Ned Foley writes in a separate Election Law Blog post, “the Twentieth Amendment becomes the relevant constitutional provision.” Meaning, in short, that at noon on Jan. 20, Pelosi would become acting president of the United States. Pence would lose authority as vice president (and president of the Senate) and the joint session would resume, with Congress putting its stamp of approval on Biden’s victory.
And let’s not forget that a series of moves of the sort envisioned by Eastman would spark national outrage. The “howls” would not just come from congressional Democrats; they would come from the 81 million voters who Pence would have summarily disenfranchised. It is conceivable that Trump and his allies would have prevailed over mass protests and civil disobedience. But that would depend on the support of the military, which, if the actions of Gen. Mark Milley were any indication, would not have been forthcoming.
None of this should make you feel good or cause you to breathe a sigh of relief. Consider what we know. A prominent, respected member in good standing of the conservative legal establishment — Eastman is enrolled in the Federalist Society and clerked for Supreme Court Justice Clarence Thomas — schemed with the president and his allies in the Republican Party to overturn the election and overthrow American democracy under the Constitution. Yes, they failed to keep Trump in office, but they successfully turned the pro forma electoral counting process into an occasion for real political struggle.
It was always possible, theoretically, to manipulate the rules to seize power from the voters. Now, it’s a live option. And with the right pieces in place, Trump could succeed. All he needs is a rival slate of electoral votes from contested states, state officials and state legislatures willing to intervene on his behalf, a supportive Republican majority in either house of Congress, and a sufficiently pliant Supreme Court majority.
As it happens, Trump may well run for president in 2024 (he is already amassing a sizable war chest) with exactly that board in play. Republican state legislatures in states like Georgia and Arizona have, for example, used claims of fraud to seize control of key areas of election administration. Likewise, according to Reuters, 10 of the 15 declared Republican candidates for secretary of state in five swing states — Arizona, Georgia, Wisconsin, Michigan and Nevada — have either declared the 2020 election stolen or demanded that authorities invalidate the results in their states. It is also not unlikely that a Republican Party with pro-Trump zealots at its helm wins Congress in November of next year and holds it through the presidential election and into 2025.
If Trump is, once again, on the ballot, then the election might turn on the manipulation of a ceremony that was, until now, a mere formality.
Here, I’ll return to where I started. If this happens, it would be a revolutionary change. In this world, the voters, as filtered through the Electoral College, no longer choose the president. It becomes less a question of the rule of law and more one of power, of who holds the right positions at the right time, and especially, of who can bring the military to their side.