Republican Rep. Louie Gohmert’s federal lawsuit seeking to empower Vice President Mike Pence in his “discretion” to unilaterally reject certain Electoral College votes — specifically and conveniently, the ones that went for President-elect Joe Biden from key swing states — is dead on arrival and accomplishes nothing beyond giving false hope to the last and most reality-resistant of the election deniers.
Here’s the easiest way to understand why Gohmert’s lawsuit is so ridiculous. If Gohmert was right — if the vice president could, at his own whim, simply discard certain electoral votes while accepting others, then on January 6, 2017, Vice President Joe Biden could have decided to install President Hillary Clinton, rather than Donald Trump. And on January 6, 2001, Vice President Al Gore could have named himself the winner of the 2000 election. Vice President Dan Quayle could have declared from the lectern to Congress on January 6, 1993, that President George H.W. Bush had actually defeated challenger Bill Clinton in the 1992 election. Vice President Walter Mondale could have done the same for Jimmy Carter in January 1981. You can see the absurdity here.
Gohmert’s lawsuit simply ignores — defies, really — the Constitution and federal law. The vice president’s role in counting electoral votes (in his constitutional capacity as the presiding officer of the Senate) is entirely ceremonial, limited by law to “open[ing]” and “reading” the results of the states’ electoral ballots.
The law does permit Congress — not the vice president — to raise “objections” to the electoral count. And while some in Congress might exploit this procedure next week to put on a show, ultimately it won’t change a thing about Biden’s win in the 2020 presidential election.
A challenge first requires a formal objection from at least one member of the US House and one member of the US Senate. It’s not certain that an objection would even get that far, particularly in the Senate, where Majority Leader Mitch McConnell has recognized Biden’s win and has urged his fellow Republicans to not contest the count.
Even if at least one member of both houses of Congress does object, it ultimately takes a majority vote of both the House and Senate to throw out any electoral votes. That seems unlikely even in the narrowly Republican-controlled Senate (pending the January 5 runoffs in Georgia). And that simply will not happen in the Democratic-controlled House.
In one sense, Gohmert’s lawsuit is so meritless as to render itself harmless. It’s performative nonsense, grounded in neither the law nor logic, even as the President urges on some kind of futile demonstration of protest on January 6. But there is a downside: It lends still more fuel to the fire of those who continue to clog our legal system with ludicrous, baseless lawsuits, in turn undermining public faith (at least in some quarters) in the legitimacy of our democratic process.
Courts across the country, including judges appointed by members of both political parties, already have roundly rejected other efforts to contest the plain outcome of the 2020 election. And the Gohmert lawsuit is a fitting capper to this story. Soon enough, it’ll wind up where it belongs: in the discard pile, along with dozens of other absurd lawsuits that have come before it.
Now, your questions
James (California): If Donald Trump pardons himself, who would have standing to challenge the pardon, and in what court would the suit be brought?
If Trump does pardon himself, there likely is no outside party — private citizen, Congress or anyone else — who would have “standing,” or legally cognizable injury, on which to base a lawsuit. The law generally does not permit somebody who has not been directly injured to bring a legal challenge, even if in the greater public interest.
Here’s how a self-pardon could be litigated, however. The Justice Department would first have to indict Trump, notwithstanding the hypothetical self-pardon. Trump then almost certainly would move to dismiss the indictment based on the self-pardon. At that point, the federal courts would have to decide the issue. Trump likely would argue that the Constitution contains no explicit bar on the self-pardon, while the Justice Department could argue that a self-pardon contravenes the Framers’ intent to bar self-dealing. And the US Supreme Court likely would make the final decision, given the obvious Constitutional stakes. But if Trump self-pardons, and then Justice Department does not indict him, we will not get a definitive answer on the legality of the self-pardon.
Eric (California): Can an acting attorney general appoint a special counsel?
With William Barr’s recent resignation as attorney general, his former deputy, Jeffrey Rosen, is now acting attorney general. The special counsel regulations specify that only “[t]he Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General” has the power to appoint special counsel. Under any reasonable interpretation of the regulations, then, Rosen now holds the power to appoint special counsel.
The bigger question is whether the President, as head of the Executive Branch, has the power to directly appoint a special counsel, or to order Rosen to do so. There is no clear answer under the law. Proponents of a “unitary executive” theory — holding that all executive branch authority is ultimately vested in the President — would answer in the affirmative. But those who believe the Justice Department should be independent of presidential politics and decision making likely would disagree.
Tom (Florida): Can the new administration simply shut down or fire any “special counsel” appointed by the prior administration?
Federal regulations lay out the circumstances under which an attorney general can fire a special counsel: “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” The regulations also require the attorney general to memorialize in writing the reasons for firing the special counsel.
In some respects, the regulations give special counsel protection against being fired for purely political reasons. On the other hand, the terms “misconduct,” “dereliction of duty” and “other good cause” are fairly broad and malleable, affording an attorney general some latitude to justify a firing.