As I’ve said previously, I agree with Rick Hasen–as quoted in a new extensive appraisal of Pence and his role in the totality of events relating to January 6–that Pence “should have recognized Biden as the winner much earlier. But he did the right thing in the end.”
Indeed, I would again highlight as I have before, the speech that Pence gave at the Georgia rally on January 4, where he said:
“I know we all got our doubts about the last election, and I want to assure you I share the concerns of millions of Americans about voting irregularities, and I promise you come this Wednesday we’ll have our day in Congress, we’ll hear the objections, we’ll hear the evidence.”
This contributed to the expectations of Trump supporters that something could be done at the January 6 joint session and thus helped set the stage for the “‘wild’ chaos” that Trump and his supporters, including apparently some of his team’s lawyers, wanted to foment. (Those expectations were altogether inappropriate because under the Twelfth Amendment and the Electoral Count Act, the only role for the joint session of Congress is to accept as “conclusive” electoral votes from states that comply with the conditions set forth in 3 U.S.C. 5. Any claims of “irregularities”–there was no procedure for “evidence” to be presented in the joint session–would have been contrary to this congressional obligation, and thus it was wrong for Pence on January 4 to say that the January 6 joint session was entitled to “hear” such claims.)
I continue to believe strongly that Pence should have given the same kind of speech that Mitch McConnell gave on December 15, the day after the Electoral College vote, recognizing Biden as president-elect at that point. Because Pence was Trump’s running mate, if Pence had given that kind of speech on December 15, conceding the defeat of the Trump-Pence ticket, it would have considerably deflated Trump’s efforts (as well as those of Eastman and others) to overturn the Electoral College outcome on January 6. Given how utterly baseless were Trump’s claims that Biden’s Electoral College victory was the incorrect result according to the ballots cast and counted and all the applicable law, as we all now know so vividly from the testimony of former AG Barr and others at Monday’s hearing, Pence had a civic responsibility on December 15 to publicly acknowledge this truth, as McConnell did. Trump of course also had the responsibility, but it was not in his character to act appropriately. Trump’s moral failure, however, does not absolve Pence of his own responsibility. Again, as Rick said, Pence did the right thing on January 6, but he did not do the right thing in all the days leading up to it, and his failure in this regard–as the plot to overturn the Electoral College result gathered steam from mid-December to early January–contributed to the conditions that led to the awful violence of January 6.