And Pence’s choice started off like his predecessors and would have sounded like parliamentary jargon to most people watching the session on Jan. 6, 2021: Vice presidents begin the counting of electoral votes by indicating that votes will be counted “after ascertaining that the certificates are regular in form and authentic.” But Pence added another line to this explanation that the preceding vice presidents did not.
Not only would each certificate he introduced be “regular in form and authentic,” he said at the time, but they would be the ones that “the parliamentarians have advised me is the only certificate of vote from that state, and purports to be a return from the state, and that has annexed to it a certificate from an authority of that state purporting to appoint or ascertain electors.”
It was a mouthful with a purpose. Pence was incorporating the specific legal language of the Electoral Count Act — the 1887 law that, along with the 12th Amendment, governs the counting of electoral votes. The law requires that any electoral votes counted by Congress be submitted by official state authorities, like governors and secretaries of state.
The Jan. 6 select committee has been keenly interested in the mystery of Pence’s added words, too. The panel’s top investigator, Tim Heaphy, earlier this year asked Short about Pence’s decision to change the language — and even played a video clip comparing Pence’s remarks to those of previous vice presidents, according to a partial transcript of Short’s testimony to the committee that was released in court filings last week.
“So, obviously, Vice President Pence in 2021 alters, amplifies, adds language to the script that had been read by Vice Presidents reaching back 20 or 30 years,” Heaphy said. “Tell us about the decision, the purposeful decision by Vice President Pence to add that language to the ascertainment script.”
“[T]he predominant reason was that the Vice President wanted to be as transparent as possible,” Short replied. But the transcript was curtailed mid-sentence.
Short explained in an interview that the added words were designed to clearly address Pence’s views of Trump allies’ push for false slates of presidential electors. Supporters of the then-president would be wondering why Pence refused to consider those slates during the Jan. 6 session.
Another source familiar with discussions among the then-vice president and his allies in those days said Pence’s decision to revise the wording had another audience: Members of Congress aligned with Trump who also espoused the view that Pence could introduce alternate electors. Pence, the source said, intended to preempt potential points of order or other procedural challenges those members might have made by laying out his thinking.
Indeed, top Trump allies like Stephen Miller and John Eastman pointed to these alternate electors as a way to keep the former president’s election challenge alive. Eastman built them into his last-ditch strategy to pressure Pence to overturn the election himself.
So the language Pence used had to explain his rationale for saying no.
The former vice president hasn’t stopped subtly critiquing Trump in the year since he resisted the election subversion push. Pence told donors last week that “there is no room in this party for apologists for Putin,” viewed as a deliberate if delicate reference to Trump. Pence also recently declared that Trump was “wrong” for claiming he could unilaterally determine the outcome of the election.
The select committee is continuing to probe the involvement of Trump and his network in the submission of false elector slates to Congress in late 2020.
Under the Electoral Count Act, electors picked by the party of the winning candidate in each state are required to meet in mid-December to formally cast their ballots. In seven states won by Biden, however, the Trump campaign worked with state Republican parties to assemble their own elector meetings and cast ballots for Trump. Those false electors then signed certificates and mailed them to Washington.
Eastman urged Pence to introduce the “dual” slates on Jan. 6 and claim the outcome was in dispute. Then, per Eastman, Pence could adjourn the legally required session of Congress and urge state legislatures to resolve the so-called disputes, even though the Electoral Count Act prohibits adjournments during the count.
Pence’s counsel Jacob also testified to the Jan. 6 select committee; a partial transcript of his comments filed in federal court described Eastman’s repeated efforts to convince Pence to introduce the alternate elector slates. Those comments formed the core of the select committee’s recent suggestion that it believes Eastman may have criminally conspired to obstruct Congress’ certification of the 2020 election.
Eastman has rejected that assertion, claiming he thought his efforts had a legitimate legal basis. He’s fighting to shield some of his emails from the select committee by claiming attorney-client privilege.
When Pence refused to entertain the alternate electors during Congress’ session certifying Biden as the next president, Trump supporters encroaching on the Capitol became furious. Within an hour, hundreds had breached the building, with some chanting “hang Mike Pence.”
Amid the chaos, Eastman exchanged tense emails with Jacob. Pence’s counsel accused Eastman, in one remarkably blunt missive, of being “a serpent in the ear of the president of the United States.”