By Lindsay Chervinsky
New revelations from the congressional committee investigating the events on and leading up to the Jan. 6, 2021 attack on the U.S. Capitol show the crucial role then-Vice President Mike Pence played in thwarting the insurrection – and reveal the principles behind his actions.
The 12th Amendment to the U.S. Constitution reads “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.” Under the Constitution, the vice president also serves as president of the Senate.
At the June 16 hearing, Judge J. Michael Luttig, a conservative political icon, and Greg Jacob, Pence’s counsel, asserted that the Constitution grants the vice president no authority to overturn or reject the electoral votes.
Pence himself has said “there is almost no idea more un-American than the notion that any one person could choose the American president.” Every single vice president in U.S. history agreed. I am a historian of the U.S. presidency. No vice president has ever rejected officially certified electors, refused to count the votes or paused the official ceremony – not even when their own personal interests were at stake.
Indeed, in 2001, Vice President Al Gore proclaimed, “The choice between one’s own disappointment in your personal career and upholding the noble traditions of American democracy is an easy choice.” He then oversaw the process of counting electoral votes that delivered defeat to him in his campaign to win the presidency and victory to his opponent, George W. Bush.
Under pressure, and threat
And yet as the committee’s evidence has shown, Trump insisted Pence overturn the election. Trump fueled the rage of the mob marching toward the Capitol and he egged them on, even after he knew violence was possible. When the rioters chanted “hang Mike Pence,” Trump reportedly said Pence “deserves it.”
Pence barely escaped the mob’s wrath. New testimony shows that the rioters were just 40 feet from the vice president. But as rioters called for his execution and erected gallows outside the Capitol building, Pence refused to leave the Capitol complex. He didn’t want anyone to see the vice president fleeing the Capitol. That symbol would be too hard to forget.
We still don’t have all the evidence, but it appears Pence also coordinated city and federal responses to the riot from the secure underground location where he took refuge. And once the mob had been driven out of the Capitol, Pence insisted on completing the ceremony in the early morning hours of Jan. 7.
A loyal lieutenant
Until December 2020, Pence had been unfailingly loyal. He had never publicly disagreed with Trump, regardless of the embarrassment or implications for his own future career.
Why did Pence draw such a visible line over the certification of the election? There appear to be two reasons: a clear sense of legality and a deep conviction about his place in history.
The certification of the election appears to have been the first time Trump explicitly asked Pence to break the law. Pence previously defended controversial Trump administration policies like the border wall and the so-called “Muslim ban,” and excused Russian meddling in the 2016 election, but they were just words. Pence could make an argument that appealed to the Republican base, even if what he was talking about didn’t comport with U.S. law or tradition. He didn’t have to take action.
The certification of the electoral votes was different. Trump didn’t demand that Pence make a statement at a public event. Trump demanded that the vice president overturn a free and fair election – the very bedrock of American democracy. Notably, Pence didn’t speak out about the plans afoot in the White House to overturn the election, which the hearings on Jan. 6 have detailed. But actually participating in the effort appears to have been one step too far for Pence.
A sense of history
Additionally, Pence had a keen sense of his place in history. The former vice president’s chief counsel told Congress that Pence said he looked forward to meeting the framers of the U.S. Constitution in heaven. That is not the statement of someone with short-term vision.
Furthermore, all of Pence’s advisors, from Luttig to former Vice President Dan Quayle, confirmed that history offered resounding guidance. The rule of law is the foundation, the profound truth of the United States. The vice president had no legal authority to overturn the election and nothing in the historical record suggested otherwise.
In February 1801, Vice President Thomas Jefferson opened the electoral returns from the states and discovered that he and his vice-presidential candidate, Aaron Burr, had tied for first place – which was possible under the Constitution at the time. President John Adams had come in third. While the House of Representatives cast ballot after ballot, attempting to resolve the election, Jefferson and Adams met. They pledged to each other that they would not meddle in the election. On the 36th ballot, Jefferson was elected as the third president of the United States. Adams and Jefferson didn’t just refrain from taking action; they intentionally upheld the sanctity of the electoral process. That is the historical precedent Pence followed.
Since then, no vice president has seriously considered overturning the results of the election. It should be a non-issue. It should be a relatively boring day for the vice president. It should not require courage.
But on January 6, 2021, it required all of Mike Pence’s fortitude. Reflecting on Pence’s actions that day, committee Chairman Bennie Thompson, a Democrat, said in the beginning of the third hearing, “Mike Pence and I agree on very little,” but we agreed that “there is no idea more un-American that the notion that one person can choose the president.”
At 3:50 a.m. on Jan. 7, after the congressional session had concluded, the vice president’s chief of staff, Marc Short, texted Pence a Bible verse, 2 Timothy 4:7-8, which reads, “I have fought the good fight, I have finished the race, I have kept the faith.”
Under the terms of the U.S. Constitution, Pence should not have had to fight, nor do very much to finish the race. But when confronted with the unimaginable, he kept the faith. He kept his oath.
Lindsay Chervinsky is Senior Fellow at the Center for Presidential History at Southern Methodist University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.