The day after former President Donald Trump was indicted over his efforts to overturn the outcome of the 2020 election, Trump repeated a lie that the indictment depicts as central to his attempt to obstruct the congressional certification of Joe Biden's victory.
Trump posted on social media on Wednesday that he felt badly for former Vice President Mike Pence because of what Trump described as a flailing Pence campaign for the 2024 Republican presidential nomination. Trump suggested Pence was struggling because "he didn't fight against Election Fraud." Trump then added: "The V.P. had power that Mike didn't understand, but after the Election, the RINOS [Republicans in Name Only] & Dems changed the law, taking that power away!"
Facts First: The final sentence of Trump's post includes two false claims. First, his claim that Pence "didn't understand" the power he had as vice president is not true; Pence was entirely correct when he repeatedly told Trump in late 2020 and the first days of 2021 that the vice president did not have the authority to reject Biden's electoral votes on January 6, 2021 as Trump had demanded. Second, while it's true that Congress passed a bipartisan law in 2022 that revised some vague and imprecise language from the 1880s law that had previously governed the electoral count, Trump was incorrect when he claimed this 2022 law took power "away" from Pence. Rather, experts say, the new law simply made more explicit something the old law had expressed less clearly: the vice president has only a ceremonial role in Congress' electoral count session and cannot unilaterally decide which electoral votes to accept or reject.
Trump was also wrong when he insinuated in the Wednesday post that Pence's refusal to reject electoral votes on January 6, 2021, amounted to a surrender to "Election Fraud." As the indictment notes, even Trump's own senior governmental appointees and campaign officials had found there was no fraud sufficient to have changed the outcome of the election in any state.
Pence's campaign did not respond to a request for comment for this article. Before Trump's post on Wednesday, though, Pence told reporters at the Indiana State Fair: "I want people to know that I had no right to overturn the election and that what the president maintained that day, and frankly has said over and over again over the last two and a half years, is completely false. And it's contrary to what our Constitution and the laws of this country provide." He added, "Sadly, the president was surrounded by a group of crackpot lawyers that kept telling him what his itching ears wanted to hear."
Trump's repeated false claims about the 2022 law
The post on Wednesday was not the first time Trump had claimed that the existence of a congressional effort in 2022 to clarify the 19th-century Electoral Count Act proves that Pence did have the power in 2021 to reject Biden electors.
In reality, Pence is right that he never had that power. Three experts in election law told CNN that Trump was wrong, again, in his Wednesday post.
On January 6, 2021, "it was widely understood by all serious constitutional scholars (and all previous VPs who had ever been in that position) that the VP did not have the power to judge the validity of electoral votes," Alexander Keyssar, a Harvard University professor of history and social policy, said in an email -- but the Electoral Count Act "was poorly drafted in a great many ways (try reading it!)" and did not say explicitly that the vice president couldn't do such a thing, so the new law included clearer wording.
"The ounce of plausibility in [Trump's] claim, thus, is that there was some potential ambiguity in the original wording -- if one ignored the history. But that does not mean that Pence had the power to do what [Trump] wanted; it means that the original wording warranted clarification so that no one in the future would try to misinterpret it in that way," Keyssar said.
Similarly, Michael Thorning, director of structural democracy at the Bipartisan Policy Center think tank, said in an interview: "When Congress reformed the Electoral Count Act in 2022, it was merely reaffirming what was already the long-held and established practice -- that the vice president does not and never has had unilateral authority to discard or disqualify a state's electoral certificates." Thorning said the record is clear that "Congress was not changing the status quo, Congress was reinforcing what was already the case."
The new law says that, except as otherwise specified, the vice president's role in Congress's electoral count session "shall be limited to performing solely ministerial duties." The new law continues that the vice president "shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors."
The old law was far less direct, but it also laid out merely perfunctory duties for the vice president at Congress' electoral count session -- saying, in some convoluted sentences, that the vice president's role was to "preserve order," open "all the certificates and papers purporting to be certificates of the electoral votes," hand them to members of Congress serving as "tellers," call for any objections, and announce the "state of the vote." The Twelfth Amendment to the Constitution, likewise, says the vice president "shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." It says nothing about the vice president intervening to change the count.
Constitutional law scholar Edward Foley, director of the election law program at The Ohio State University, said the fact that Congress clarified the procedures for counting electoral votes in 2022 "does not mean that Pence had the power Trump asserted before the clarification." Foley continued in his email: "At most it can be said that there was some ambiguity in the law before the clarification, but the much better view (in my judgment, and that of many others) is that law constrained Pence to present to Congress only those submissions of electoral votes that were backed by official certifications from the state governments (which was Pence's view)."
Because Trump keeps suggesting that Congress would not have passed a new law about the vice president's powers if it was not substantially changing those powers, it's worth noting that the 2022 electoral count reform law is much broader than this single section about the vice president's role; it contains other provisions, beyond the scope of this fact check, that do make changes to different rules governing the count.
What Trump's own lawyers said
Not only is there widespread agreement among independent experts that Trump is wrong and Pence is right about what powers Pence had on January 6, 2021 -- Trump's own White House attorneys flatly rejected Trump's stance during the lead-up to that day's count. The House select committee that investigated the Capitol riot that day wrote in its final report that "no White House lawyer" under Trump "believed Pence could lawfully refuse to count electoral votes."
Trump White House Counsel Pat Cipollone testified to the committee that he was certain he had conveyed his view that "the vice president did not have the authority to do what was being suggested."
Another White House lawyer under Trump, Eric Herschmann, recounted to the committee an exchange he said he had with the outside lawyer, John Eastman, who was a driving force behind the idea of Pence rejecting Biden electors.
"And I said to [Eastman], hold on a second, I want to understand what you're saying," Herschmann said. "You're saying you believe the vice president, acting as president of the Senate, can be the sole decisionmaker as to, under your theory, who becomes the next president of the United States? And he said, 'yes.' And I said, 'Are you out of your F'ing mind,' right. And that was pretty blunt. I said, 'You're completely crazy.'"
