Judge: Trump’s theory about Pence’s election powers has ‘no basis’

Retired Judge J. Michael Luttig speaks during a House Jan. 6 committee hearing on Thursday
Retired Judge J. Michael Luttig speaks during a House Jan. 6 committee hearing on Thursday.
(Kent Nishimura/Los Angeles Times)

Former President Trump’s theory that Vice President Mike Pence could have effectively deemed Trump the winner of the 2020 election is legally baseless and amounts to “constitutional mischief,” retired federal Judge J. Michael Luttig told the Jan. 6 committee Thursday.

Trump and his legal advisor John Eastman repeatedly claimed that Pence had the power to reject electoral votes or suspend the electoral count temporarily while some states looked for evidence of fraud, possibly handing the election to Trump. That idea has “no theory or basis in the Constitution or laws in the United States at all,” Luttig, who was appointed to the U.S. 4th Circuit Court of Appeals by President George H.W. Bush, told the committee.

“I would lay my body across the road before I would let the vice president overturn the 2020 election” on the basis of Eastman’s theory, Luttig said. “What this body needs to know, and now America needs to know, is that that was the centerpiece to overturn the 2020 election.”


Rep. Pete Aguilar (D-Redlands), a member of the committee, noted that a vice president meddling in the electoral count has no recent precedent in American history.

“For over two centuries, vice presidents have presided over the joint sessions of Congress in a purely ceremonial role.” Aguilar said, adding that it includes former Vice President Al Gore, who oversaw the count of tumultuous 2000 electoral count in which he lost the election to George W. Bush.

Eastman’s legal theory hinged on a flimsy interpretation of the 12th Amendment that stretched the powers of the vice president’s role, Luttig said. “The incumbent vice president of the United States has little substantive constitutional authority, if any at all,” Luttig said. Just to be sure, though, some members of Congress have pushed to reform the Electoral Count Act to formally clarify the limits on the vice president’s role. When Congress meets to certify the next presidential election, Vice President Kamala Harris is likely to be in the same seat that Pence was in on Jan. 6, 2021.