THIRTY-EIGHT
In late December, Pence phoned former vice president Dan Quayle. At 74, the once boyish looking Quayle was living the private, golf-playing life he loved in Arizona.
The two men shared a unique profile: Indiana Republicans who had become vice president.
Pence wanted advice. Despite the Electoral College casting its ballots for Biden on December 14, Trump was convinced that Pence could throw the election to Trump on January 6, when Congress certified the final count.
Pence explained to his fellow Indianan that Trump was pressuring him to intervene to ensure Biden would not secure the needed 270 votes during the certification and push the election to a vote in the House of Representatives.
If thrown to the House, there was a twist. And Trump was fixated on the twist, Pence said. It was the provision that could keep Trump in power.
While the Democrats held the current House majority, the 12th Amendment of the Constitution stated the voting on a contested election would not be done by a simple majority vote.
Instead, the amendment states that the election vote would be counted in blocs of state delegations, with one vote per state:
If no person have such majority… the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.
Republicans now controlled more delegations in the House of Representatives, meaning Trump would likely win if the chamber ended up deciding the victor.
Quayle thought Trump’s suggestion was preposterous and dangerous. He recalled his own January 6—January 6, 1993—28 years earlier. As vice president and president of the Senate, he had to certify the victory of Bill Clinton and Al Gore, who had trounced Bush and Quayle.
He had researched his duties. He had read and reread the 12th Amendment. All he had to do was count the votes.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
That was it.
Trump’s effort to cajole Pence was a dark, Rube Goldberg–like fantasy, Quayle believed, and could precipitate a constitutional crisis.
“Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” Quayle said.
“I know, that’s what I’ve been trying to tell Trump,” Pence said. “But he really thinks he can. And there are other guys in there saying I’ve got this power. I’ve—”
Quayle interrupted him.
“You don’t, just stop it,” he said.
Pence pressed again. It was easy for Quayle to make a blanket statement from political winter. He wanted to know, veep to veep, whether there was even a glimmer of light, legally and constitutionally, to perhaps put a pause on the certification if there were ongoing court cases and legal challenges.
“Forget it,” Quayle repeated.
Pence finally agreed acting to overturn the election would be antithetical to his traditional view of conservatism. One man could not effectively throw the election to the House of Representatives.
Quayle told Pence to let it go.
“Mike, don’t even talk about it,” he said.
Pence paused.
“You don’t know the position I’m in,” he said.
“I do know the position you’re in,” Quayle said. “I also know what the law is. You listen to the parliamentarian. That’s all you do. You have no power. So just forget it.”
Pence told Quayle that he had studied the video from January 6, 1993. It was on the C-SPAN website’s archive. Many of the people in the footage were now dead, including then House Speaker Tom Foley, a Democrat who shook Quayle’s hand as the vice president opened the session.
“Mine was pretty simple,” Quayle chuckled. “You announce it, and you go on.”
Quayle turned to Trump’s assertion that the election had been stolen from him. He told Pence those statements were ridiculous and eroded public trust.
“There’s no evidence,” Quayle said.
“Well, there’s some stuff out in Arizona,” Pence said, updating Quayle on the Trump campaign’s legal efforts there. There was a lawsuit in federal court to compel Arizona’s governor to “decertify” Biden’s win in the state, which had enraged Trump ever since Fox News called Arizona for Biden at 11:20 p.m. on election night.
“Mike, I live in Arizona,” Quayle said. “There’s nothing out here.”
Quayle sensed that Pence knew that, but Pence was careful to offer a few lines straight from Trump’s talking points about how the process needed to unfold in the courts. Quayle suspected Pence had a marathon of Trump conversations ahead.
Still, Quayle said, it is nonsense to say the election was stolen, and to even entertain the idea of blocking Biden in January.
They soon turned to rosier topics, such as what life is like for a former vice president.
Glancing outside, not far from Scottsdale’s gleaming green golf courses and the cliffs of the McDowell Mountain Range, Quayle assured Pence that things would be fine. They were conservatives. Just follow the Constitution.
During that same period in December, Senator Mike Lee of Utah spoke with Leader McConnell and summarized what he had been telling his colleagues for weeks about attempts to not certify the election results: “We have no more authority than the Queen of England. None.”
“I agree with you,” McConnell said. “I agree.”
One of the most conservative senators, Lee had chosen to sit at the Senate desk once used by Senator Barry Goldwater of Arizona, who became the conscience of the Republican Party during Watergate, one of the prime movers in persuading Nixon to resign.
Lee was one of Trump’s most reliable GOP supporters, but he was also a legal wonk and a former Supreme Court law clerk for Justice Samuel Alito. He had appeared on Trump’s short list for Supreme Court nominations and had an impeccable legal pedigree. His father, Rex Lee, was solicitor general in the Reagan administration and was the founding dean at the law school at Brigham Young University.
He considered himself a strict constructionist, meaning he believed the Constitution designated specific powers to Congress, but no more than stated in the original language.
Before Christmas, Lee went to see Ted Cruz. They were two former Supreme Court law clerks, two strict constructionists—“law nerds” as Lee called them. They loved this stuff—who had the power and why?
In a long discussion, Lee felt they came to the exact same conclusion that the Congress had no role.
But Cruz believed he could find an alternative way of stopping a certification. He was listening to Trump allies like Congressman Mo Brooks of Alabama, who was pleading with fellow conservatives to object on January 6. They needed just one senator.
If a single senator formally objected to the certification, all 100 senators were going to have to vote on that certification. Instead of a routine certification, finished within a few hours, the exercise could mushroom into a political nightmare, forcing Senate Republicans to choose between the Constitution and Trump.
Cruz asked his staff to begin researching the counting of electors, the history of the Electoral Count Act. He was hearing from people back home. They did not trust the election outcome. But McConnell and others in the leadership were leaning hard on members. Don’t object.
Lee never wavered. He kept saying throughout December, with growing intensity to Mark Meadows and anybody who asked for his view, “The president should never pretend that the Congress itself can fix this. We don’t have that power.
“You need to realize that you’ve basically lost this unless something really extraordinary happens,” Lee said, referring to an unlikely phenomenon or ballot scandal, “something that would be itself eyebrow raising and very, very troubling.”
But based on the facts and evidence, he would add, I’m just not seeing that.
Lee went back to Utah for Christmas. Just as Cruz had, he began hearing from friends, neighbors, family members about the election being stolen. He saw the extent of Trump’s power to persuade.
People who would not be regarded as being on the fringe of society—mayors, city council men, county commissioners, sheriffs—said they were expecting him to go back to Washington and “stop the steal.” Text messages, social media posts, people who got his phone number wanting to know what was going on. How was the election stolen? What are you going to do?
Lee was directed to John Eastman, another Trump lawyer. The two spoke with each other.
“There’s a memo about to be developed,” Eastman said. “I’ll get it to you as soon as I can.”