Trump campaign legal adviser Jenna Ellis on Wednesday said that she was “deeply disappointed” in Vice President Mike Pence, who refused to reject disputed electoral votes, saying that he believes he lacks the power to do so under the U.S. Constitution.
Pence, the presiding officer of the joint congressional session where electoral votes are formally counted, said earlier in the day that he believes the Constitution “constrains” him from “claiming unilateral authority” to make decisions about rejecting or accepting votes even if he has concerns about election integrity.
Instead, he said that when disputes about elections arise, it is the responsibility of the “people’s representatives who review the evidence and resolve disputes through democratic process.”
“Vesting the Vice President with unilateral authority to decide presidential contests would be entirely antithetical to that design,” he said in a letter to Congress.
Ellis, who has been representing the campaign in President Donald Trump’s post-election challenges, said that although the U.S. Constitution limits Pence’s role, the vice president still had constitutional options that he could have taken to protect election integrity.
“The Constitution constrains, yes, and that’s why we worked hard to provide him with a constitutional option to protect election integrity,” Ellis wrote in a statement on Twitter. “BUT, he should not have been in that position—state leadership was cowardly first; SCOTUS was also.”
Earlier this week, Ellis had suggested that Pence could have delayed the certification of the Electoral College votes and asked the legislatures in six disputed states—Georgia, Pennsylvania, Michigan, Wisconsin, Arizona, and Nevada—which slate of electors should be selected.
Republican electors on Dec. 14 in the six states cast dueling Electoral College votes, citing pending legal challenges. Those votes have not been authorized by their state officials.
“[Pence] can ask that question to the states and say, ‘Well, legislators, you know I have an oath to the Constitution to uphold the Constitution as written in Article II Section 1.2, [which] says the state legislatures direct the manner in which electoral delegates are selected. So you tell me which of these two slates was selected in the manner that your state general assembly has designated,’” Ellis said during an interview on the program “The Water Cooler with David Brody.”
“And that’s a fair question. That’s not exercising discretion. That’s not setting up any sort of bad precedent,” she added. “That’s actually returning the authority to the constitutionally vested entity, and to simply direct that question I think would then require a response from these very timid, to put it lightly, state legislators that haven’t been willing to act, and it would in fact then give a very clean outcome to this election.”
Under Article II of the U.S. Constitution, presidential electors must be appointed by each state in the manner prescribed by the state’s legislature.
Pence’s role during the Jan. 6 session has been heavily debated in recent days, as Trump and his allies hope that the vice president will reject the slate of electors for contested states. Meanwhile, critics have said that Pence’s role is simply ministerial in that he only has the ability to count the votes even if he has concerns over their validity.
Republican lawmaker Rep. Louie Gohmert (R-Texas) attempted to seek clarification from the federal courts last week by filing a lawsuit against Pence. His lawsuit, which was dismissed by a district and appeals court, argued that Pence had the “exclusive authority and sole discretion under the 12th Amendment to determine which slates of electors for a state, or neither, may be counted.”
The vice president believes his role is “largely ceremonial,” he said in his letter to Congress, but he added that he will “ensure that any objections that are sponsored by both a Representative and a Senator are given proper consideration, and that all facts supporting those objections are brought before the Congress and the American people.”
He also rejected claims that raising objections during the Electoral College vote count is undemocratic.
Trump responded to Pence’s remarks, saying that the vice president “didn’t have the courage to do what should have been done to protect our Country and our Constitution.”
The joint session was forced to suspend following civil unrests on U.S. Capitol grounds. A subgroup of protesters breached the Capitol building after breaking windows to enter as members of Congress were sitting during a joint session to count Electoral College votes.
After police dispersed protesters, who also had to return home due to a city-wide curfew, and secured the Capitol, House Speaker Nancy Pelosi (D-Calif.) announced that the House will proceed with the count.
It’s unclear whether House GOP representatives and senators will continue their plan to object to the electoral counting efforts. Before the House and Senate chambers were evacuated and put into lockdown, lawmakers were debating a challenge to the electoral votes for Arizona.
Sen. Ted Cruz (R-Texas) and dozens of Republican representatives objected to Arizona’s electoral certification.
Jack Phillips contributed to this report.