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  • Writer's picturePhilip Drucker

What if Pence Caved? 6-17-2022

Where might we be today? We, as did the January 6th Committee, start our inquiry with a discussion of the 12th Amendment. The applicable question being, does it give any other Constitutional authority to the Vice President other than to open letters and count the electoral votes in front of a joint session of congress, bang a gavel and go home.

Fortunately, the answer can be found in a subsequent law, the post Civil War Electoral Count Act of 1887, now codified under 3 U.S. Code § 15 - Counting electoral votes in Congress. It is quite exhaustive in its scope and if you will allow me to summarize in pertinent part, regarding questions about a state's electoral votes, the affirmative consent of both the House and Senate is required before any individual state's votes could be counted.

3 U.S. Code § 15 then goes on to identify the procedural steps needed to file such a complaint. At no time is there the slightest suggestion the VP or any singular person having any power to challenge, much less reject or change the result of a state’s certified electors result.

This alone should have made any suggestion the VP has any constitutional authority to do so, and render the claim DOA. But this analysis misses the point. The point being, you guessed it, time. Time to plot, plan, scheme, scam and importantly, follow the blueprint.

Quite a bit of attention at the hearing was focused on Greg Jacob, Pence’s former attorney’s statement that Eastman knew the Vice President did not have the power to overturn the election. But that factor in context of an ongoing coup attempt would be secondary to insurrectionists and the left to the we will deal with it later, if at all, folder.

The goal at all times is to keep the ball rolling and allow events already well under way in motion and keep moving forward. Or, as in our situation, buy some additional time in an effort to foster, fester and eventually create,

“a revolution within a constitutional crisis.” - Retired Federal Judge Michael Luttig

On January 6th, 2020, there were not one but two options given to Mike Pence directly by John Eastman to choose from, either of which would have resulted in a delay or the secession of the certification process.

These were 1. Send the ballots back to the states for their review. Or, 2. An outright override of the true elector certifications in favor of the fakes, thereby invalidating the votes of 81+ million Americans, with no quarter asked, and none given.

In either event, the American public would get up the next morning not knowing who our legitimate president was as we slid further and further into unknown constitutional territory. Never has the phrase “it ain’t over till it’s over” meant so much to so many, whether the general public realized it or not.

At this juncture, and certainly after the violence started, I would argue the big takeaway was that Trump was not going to stop regardless of the cost to any individual person, the American public or our democratic way of life. Going forward, it should have been crystal clear no sacrifice by us was going to be too big if it helped trump remain in power.

This was not lost on Michael Luttig, who declared the coup ongoing and noted with appropriate urgency that Trump and his allies represented a contemporary “clear and present danger” to American democracy.

Another big takeaway for me from today’s hearing was the realization not only that violence was not a problem if Pence did not go along with the blueprint, and in fact, is and continues to be an anticipated consequence and more than acceptable, if necessary, to keep Trump in power.

For after today’s hearing, it is painfully obvious Trump assembled, instigated, coordinated and set loose an angry mob upon the Capitol Building knowing full well Mike Pence would be placed immediately in harm’s way with several “plants” within their ranks, including the Proud Boys, willing to bring him out, and “hang Mike Pence”.

Why else would in the middle of an already violent and threatening to spiral out of control invasion of the Capitol Building would Trump tweet the following incendiary message, sure to be seen by his minions as a “green light” for targeting the traitor(s) to his/their cause,

“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

As Former Press Secretary Sarah Matthews testified, “The situation was already bad, and so it felt like he was pouring gasoline on the fire by tweeting that.”

The hangman’s gallows was no accident. It was there for a purpose and that was to lynch the traitor Mike Pence. We now know this previously unthinkable act of mindless retribution was as close as 40 feet away from happening.

Further, a confidential informant from the Proud Boys confirmed to the FBI they would have killed Pence if given a chance. And for the record, the same informant also said “that anyone they got their hands on they would have killed, including (House Speaker) Nancy Pelosi.”

Why keep it going? If I’m Trump, I’m still holding out for victory, ending with an occupation of the Capitol Building, or onto the faint possibility that if I’m still somehow “president”, even in the murky aftermath of a semi-successful coup attempt, I might be able to invoke the Insurrection Act and declare Martial Law to “stop the steal” of the domestic terrorists (Democrats) trying to overturn via their massive fraud the results of an otherwise free and fair presidential election process.

It may sound a bit of a stretch, but the fact is, Constitutionally speaking, Martial Law is a very “gray” area and subject to a great deal of speculation concerning the if and when it is an appropriate application of executive power.

Martial law is not specifically mentioned in the Constitution, and it has no established definition. We do know it has been imposed more than 60 times, in large part by state and local officials.

The Insurrection Act (Military) and Title 32 U.S.C. (National Guard) may provide a basis for the President to claim and utilize his “emergency powers” required to unilaterally impose Martial Law. The truth is we simply don’t know. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, commonly referred to as the Steel Seizure or Youngstown Steel case.

We do know that Martial Law, under certain crisis conditions, would allow the military to take control over a specified area of civilians, who are then subject to trial by military tribunal. Whether the President can unilaterally invoke martial law without the participation of Congress is still a largely unanswered question.

We do know the Posse Comitatus Act requires the express authorization of Congress before the President can utilize any troops on American soil for purposes of enforcing the types of activities that routinely take place under Martial Law.

Considering Trump had already asked several states to invoke Martial Law in response to domestic acts of terrorism and violence, (some call it vandalism and looting during a protest) any reluctance to use these measures for his own personal benefit would seem highly unlikely at best.

Remember, the imposition of Marital Law, as astonishing as it sounds, the net effect would include the “prize” being the presidential ability to suspend if not an outright cancellation (probably coming soon) of all ongoing efforts to complete the elector certification process.

Now it’s getting late in the day, Baby Trump Monster and Poopy Pants Pence have had their “loud” telephone conversation, with Pence unwilling to even leave the Capitol Building and thereby the certification process to I imagine whoever was “behind the wheel”, it was clear the “insurrection reality show” would not succeed.

With nothing left to accomplish in service of the Eastman scheme via a short video, Trump sends his continental breakfast army home.

"Go home. We love you. You're very special.”

The day's events ending a few hours later with a grievance laden “big lie” follow-up tweet/thud,

"These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long."

For the record, people did die that day and for several days thereafter for nothing more than showing up for work and doing their job. For those injured, the physical and psychological damage continues. To date, Trump has issued no apologies or words of comfort to his victim's survivors.

Going forward, there is little doubt in my mind the American people would not sit idly by and watch their democracy being taken out from under them by a sociopath madman with a now overt agenda of turning America into a fascist society, subject to the whims of a dangerous, violent and bloody authoritarian dictator.

In the extreme, if Pence had at any time capitulated, would we have had, as suggested during testimony, rioting in the streets? Even for a malignant sociopath like Trump there is, after all, no place like home.

Problem is for Trump, ”home” is a state of mind that requires the construction of an unreal world where image and perception are everything, the truth, a distraction.

Trump is truly well represented by the phrase what some some people call hell, others call home. Would we all be “there” with him? Whatever you care to call it, dystopian nightmare comes to mind, join Trump and you won’t be in Kansas anymore.

Our last prognostication for the day comes in the form of a question. Given all we now know, will Trump run again in 2024? I think he will. He’ll try, anyway. Isn’t “what if” fun?

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