Ned Foley: “Why Pence can’t help save Trump”

New Ned in WaPo:

President Trump seems to believe that Vice President Pence could overturn the election results when he presides over the congressional counting of electoral votes on Wednesday.

Trump is wrong, but any attempt by Pence to intervene on behalf of himself and Trump, if it comes to that, would be a constitutional travesty. It won’t work, but it would set a dangerous precedent….

How long this will take remains unclear — because we don’t know how many states Republicans will object to. But with two hours of debate permitted for each objection, plus the time it takes for moving between the joint session and separate debates and votes in each chamber, the whole process could stretch well into Thursday.

Could Pence introduce another monkey wrench, perhaps by presenting “rival” packages of electoral votes for some states? Any such rival slates of electors lack any official pedigree and should be discarded, as required by the law. But Pence — if he is inclined to do Trump’s bidding — might try to force Congress to debate the official and unofficial packages simultaneously. Either way, the two chambers control the outcome; it’s just a question of how to get there.

The remaining wild card would be for Pence to try to make the unconstitutional move of ordering electoral votes for Biden disqualified. The two chambers separately can vote to overrule him. If Pence then says that he is disregarding their action and asserting his supposed power as president of the Senate, the Senate can insist upon its right as a parliamentary body to control the conduct of its presiding officer.

As a last resort, Congress could suspend the counting of electoral votes until Pence relents and abides by its decision. In that extraordinary case, Pence’s term would still end at noon on Jan. 20. The counting would resume with the Senate’s president pro tempore in the chair. Messy, yes, but Biden still would become president.

In this way, Congress can withstand whatever Trump and his allies — including, potentially, Pence — might do in a last-ditch effort to subvert the election.

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