It is obvious that there were two very different legal opinions regarding the 2020 election. The January 6th committee only heard one legal opinion, that by someone who agreed with them. But anyone familiar with the law knows that there are almost always two sides to complex issues, that is why we have lawyers on both sides, and we have trials. The attorney who was advising Pence said it would have been illegal for him to overturn the results of the election. But that ignores what actually happened. To the best of my knowledge, no one asked Pence to do that at all. What they did ask was for him to delay the confirmation of the results and ask the state legislatures to confirm or deny the delegates representing the state in the electoral college. It is important to note that several state legislators did petition congress regarding this.
This actually happened before. In 1800, there was a tie between Thomas Jefferson and Aaron Burr. It took several days of balloting before the House chose Jefferson. One notes that Jefferson ran as President and Aaron Burr ran as Vice President, so one would think the result would be automatic. But it was far from automatic. Eventually the 12th Amendment was passed to prevent this from happening again:
One change was that if a candidate failed to get a majority, the House would decide the President and the Senate the Vice President.
In 1824, Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay were all candidates. Andrew Jackson got the most popular votes and the most electoral votes. But he did not get the 131 electoral votes required. Since there was no clear winner, The House chose John Quincy Adams.
In 1876, the election was down to Rutherford B. Hayes and Samuel J. Tilden. Tilden actually won the popular vote and claimed 184 electoral votes. But Republicans challenged the results and charged Democrats with fraud and voter suppression of blacks in Florida, Louisiana and South Carolina. Those 20 electoral votes changed everything. The House couldn’t agree, so a commission was made up of 5 representatives, 5 senators and 5 supreme court justices. The commission determined that Hayes won, so Democrats filibustered. Eventually, in desperate need to make someone President, the filibuster collapsed. By the way, the price demanded by Democrats for ending the filibuster was that federal troops be withdrawn from the South resulting in the election of Democratic governments in southern states. That ended “reconstruction” and ushered in the Jim Crow era.
The problem in the 2020 election is very different than what is being discussed. The constitution states that the state has the power to choose the method of selecting electors. During the 2020 election there were allegations that the 2020 election was conducted contrary to existing state law. Some state legislators appealed to congress claiming that the electors had not been chosen according to state law. In Ray v Blair, the Supreme Court ruled that once an elector was appointed, the state could no longer tell them how to vote
While the Constitution gives states broad power to choose the method of selecting Presidential electors, that power does not include the authority to remove them and cancel their vote if they do not support the statewide winner, the majority ruled.
But what if the state legislature appoints a separate slate of electors because it believed the way the election was conducted violated state law. If the argument had been that some counties in Pennsylvania had ballots counted differently than other counties, the Supreme Court might just have listened. That, after all, was the basis for the Bush v Gore decision. But no one made that argument, and the Supreme Court was not going to volunteer.
It is my understanding that what the Trump administration wanted Pence to do is refer the question regarding which slate of electors was valid, to the state legislature(s). That is very different from asking Pence to declare Trump the winner.
One can and did argue that this was a failed legal strategy, but it is vastly different than asking Pence to just decide on his own. John Eastman, Found Director of the Claremont Institutes Center for Constitutional Jurisprudence made that exact argument.
Here is what the law says:
“You sometimes hear conservatives argue that state legislatures could now “restore” their power to select electors (Claremont’s John Eastman makes that argument here around the 7–8 minute mark). Federal law allows this only “whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law.” (3 U.S.C. § 2). But that is not what happened. An election was held on Election Day, results were reported and certified showing a winner, and election-contest procedures were followed in the states to determine the legality and correctness of those results.”
Note this article was by National Review, which is notoriously “never-Trumper.” It ignores the critical issue of what to do if the way the election was conducted violated state law. It really doesn’t matter who is right, legally, but making a legal argument is a far cry from plotting an insurrection. Few things are certain, but it is absolutely certain that Trump had and has attorneys who will make that argument.
I believe the more fundamental issue is nothing more or less than this: “Will history be kinder to those who pushed an incompetent and hopelessly corrupt Joe Biden into the Presidency, or those who saw this disaster coming and trying to stop it.”
Even if the election was technically legal, it was hopelessly corrupt. The MSM openly campaigned against Donald Trump, and it buried the Hunter Biden laptop report. Social media conspired against him and “Twitter” literally banned him. There are numerous polls showing that if people knew about that laptop and the serious allegations regarding Hunter and possibly Joe Biden, they would not have voted for Joe Biden.
Even now the MSM is trying to convict Trump without even the pretense of being fair. Trump is far from perfect, but the way the Democrats and the MSM have handled this is perfectly awful.
The big lie here is that there was nothing regarding the 2020 election that should have been grounds for concern. The bigger lie is that all the allegations of election fraud have been debunked. The biggest lie is that anyone in the Democratic Party or the MSM has any interest in reporting objectively on this.
The principal rule of law is that both the defense and the prosecution have an equal opportunity to make their case. Unless “some” Democrats recognize that failure to meet this standard hurts them more than it does Donald Trump or Republicans in general, it is difficult to see how things change until both the Democratic Party and its propaganda arm we call the MSM are thrust brutally and forcefully from power. Hopefully starting this November.