The filing came in response to a lawsuit from Rep. Louie Gohmert (R-Tex.) and a number of Republicans in Arizona, who argued that an 1887 law that governs how Congress certifies presidential elections is unconstitutional. The suit argues that the Constitution gives the vice president, in his role as president of the Senate, sole discretion to determine whether electors put forward by the states are valid.
It asks a federal judge to take the extraordinary step of telling Pence that he has the right, on his own, to decide that the electoral college votes cast earlier in December for Biden are invalid and to instead recognize self-appointed Trump electors who gathered in several state capitals to challenge the results.
While experts agree that the law is vague and confusing, it has never before been challenged; it has been accepted by officials in both parties for more than 130 years as establishing a process in which the voters, ultimately, choose the president. This year, 81 million voters supported Biden, earning him 306 electoral college votes to Trump’s 232.
To win a lawsuit, a plaintiff must convince a judge that the interests of the person they are suing are opposed to their own — there must be some controversy or conflict between them that could be resolved through the litigation.
In this case, a Justice Department lawyer, writing on Pence’s behalf, wrote that the interests of Gohmert and the other plaintiffs were not sufficiently opposed to Pence’s own — since they were seeking to expand his power — to justify a suit.
“The Vice President is not the proper defendant to this lawsuit,” wrote Deputy Assistant Attorney General John V. Coghlan.
“The Vice President — the only defendant in this case — is ironically the very person whose power they seek to promote,” he added. “A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction.”
Instead, Coghlan wrote that Congress was the proper defendant for such a suit.
Coghlan wrote that the lawsuit has other problems, too, and that, as a result, the judge should reject it, particularly given the limited timeline before next week’s vote, without trying to weigh difficult and never-before-tested constitutional issues.
While the filing dealt with a narrow legal issue, it still offered the first indication that Pence may not plan to reinterpret his role in next week’s ceremony in an attempt to change the election results. Since November, Pence has echoed some of Trump’s unfounded complaints about the election, but he has been silent on the president’s attempts to badger Republicans into overturning the results.
Mark Meadows, Trump’s chief of staff, was informed about the Justice Department’s position at least a day before the filing, a person familiar with the matter said.
Lawyers for the House of Representatives also asked the judge to reject the suit late Thursday, arguing that it called for “a radical departure from our constitutional procedures and consistent legislative practices” and would “authorize the Vice President to ignore the will of the Nation’s voters.” In a statement, House Speaker Nancy Pelosi (D-Calif.) said the suit had “zero legal merit” and was “yet another sabotage of our democracy.”
Filed in Texas, the case was randomly assigned to be heard by U.S. District Judge Jeremy D. Kernodle, a Trump appointee who took the bench in 2018. Kernodle has ordered the plaintiffs to respond to Pence’s filing by Friday morning but has otherwise not indicated how he will handle the case, including whether he will hold a hearing on the matter.
Pence could face less political pressure next week if the judge rejects the suit before Congress meets.
While the lawsuit proceeded, Republicans continued to grapple with how to handle the congressional ceremony next week.
Sen. Ben Sasse (R-Neb.) called the effort to use the congressional process to reverse Biden’s electoral college victory a “dangerous ploy,” underscoring the challenge Trump faces in persuading even members of his own party to join it.
In an open letter to his constituents, Sasse wrote that there is no evidence of fraud so widespread that it could change the results and said he has urged his colleagues to reject “a project to overturn the election.”
“All the clever arguments and rhetorical gymnastics in the world won’t change the fact that this January 6th effort is designed to disenfranchise millions of Americans simply because they voted for someone in a different party,” Sasse wrote on Facebook shortly before midnight Wednesday. “We ought to be better than that.”
His letter followed Wednesday’s announcement by Sen. Josh Hawley (R-Mo.) that he will object next week when Congress convenes to certify the electoral college vote, a move that will force a contentious floor debate that top Senate Republicans had hoped to avoid.
Trump has repeatedly and falsely suggested that the ceremonial milestone offers a last-ditch way to reverse the election results and is urging Republicans to join his bid.
As he continued to press Republicans to support his effort to overturn the election, Trump on Thursday cut short a holiday trip to his Mar-a-Lago estate in Florida, returning to Washington earlier than scheduled. Back at the White House, he released a valedictory video, more than four minutes long, in which he outlined the accomplishments of his tenure, including his handling of the coronavirus pandemic. The video did not mention the election.
Sasse has been far more willing to criticize Trump than most of his GOP colleagues, but even so, his staunch opposition highlights the nearly certain futility of the president’s efforts to hang on to power.
To succeed, Trump would not only have to prevail in the Republican-led Senate but also in the House, which is controlled by Democrats.
The objections would come during a joint session of Congress on Wednesday. According to the Constitution, Pence will read aloud electoral college votes cast in each state in December.
Any member of the House, joined by a senator, can object to a state’s electoral college votes, prompting two hours of debate in each chamber, followed by a vote on the challenge.
Senate Majority Leader Mitch McConnell (Ky.) and other leading Republicans had discouraged members of their caucus from challenging the electoral college vote, conceding that the move would fail but could drag out the process through lengthy debate and, ultimately, force Republicans to take an awkward vote.
A number of other Senate Republicans have acknowledged Biden’s victory, and several — including Sens. Susan Collins (Maine), Patrick J. Toomey (Pa.) and Mitt Romney (Utah) — said this week that they plan to oppose any challenge to the electoral college vote.
In a statement, Sen. Kevin Cramer (R-N.D.) said he likewise believes that “evidentiary hearings in courtrooms remains the only viable course for the remedy the President is seeking.” But he added, “I will listen intently — and with an open mind — to the arguments brought before the Senate if objections are made on January 6 to the Electoral College votes.”
Hawley, meanwhile, who is believed to be contemplating a run for president in 2024 and is eager to inherit Trump’s base, began citing his plans in fundraising appeals for his campaign committee Thursday.
More Republicans are expected to sign on to election challenges in the House, but their relatively small numbers there mean the effort will amount to little more than a final display of loyalty to Trump.
Seven House Republicans from Pennsylvania on Thursday issued a joint statement indicating they plan to contest the results from their own state, arguing that the Democratic governor and secretary of state, joined by a “rogue Pennsylvania Supreme Court,” usurped the legislature’s authority to run the election.
They did not allege fraud but complained about several issues involving the administration of the state’s elections. Similar complaints have already been litigated in state and federal courts in Pennsylvania, and the Republican-led legislature declined to interfere with the certified results, which showed that Biden defeated Trump by more than 81,000 votes in the state.
Nationally, more than 90 federal and state judges have rejected challenges to the November vote, notably finding allegations of fraud to be without merit.
In his letter, Sasse said there is a constitutional basis for what is being attempted but it is “absolutely not” warranted in this case.
“For President-Elect Biden’s 306-232 Electoral College victory to be overturned, President Trump would need to flip multiple states,” Sasse wrote. “But not a single state is in legal doubt.”
Sasse wrote that his GOP colleagues realize what is happening but fear crossing the president and his supporters.
“When we talk in private, I haven’t heard a single Congressional Republican allege that the election results were fraudulent — not one,” he said. “Instead, I hear them talk about their worries about how they will ‘look’ to President Trump’s most ardent supporters.”
Matt Zapotosky contributed to this report.