In the last days of December 2020, Politico noted a decidedly odd story. That’s when Rep. Louie Gohmert, along with a group of would-be Donald Trump electors from Arizona, filed suit against Mike Pence—not for violating the 1887 Electoral Count Act, but for following it. And if that doesn’t sound strange enough already, Gohmert was likely acting as a stand-in for Trump.
In an update, Politico ponders why this story has gotten so little attention. And it’s a good question.
The suit against Pence seems to have been a proxy fight in two ways: First, the suit from Gohmert put more pressure on Pence to go along with the coup plan that was being circulated around the White House and briefed to Republicans in Congress. Second, it was a direct attempt to get the Department of Justice to weigh in on the constitutionality of the Electoral Count Act. Scoring points on either of those fronts might seriously advance the hopes of running through Trump’s plan to overthrow the election while giving it a patina of legality.
Despite claims that the plan presented to Republicans by Phil Waldron was not the same as the “official” plan that Mark Meadows, Trump, and attorney John Eastman pressed on Pence in the Oval Office, it’s clear that the critical points of the plan are the same. The details of Gohmert’s suit show that it follows the same basic themes. There was only one coup plan: Have Pence refuse to count enough electoral votes for Joe Biden so he could either claim that Trump was the outright victor or make a case that the election was “in dispute,” giving Trump the pretense to call for a do-over election under military supervision.
Well before Jan. 6, Republicans were out there in public, explaining that scheme in court. It’s just that no one in the media took them seriously.
In that December 2020 lawsuit, Gohmert and company explicitly make the claim that would be repeated in the memos from Eastman and the PowerPoint from Waldron.
“Under the Twelfth Amendment, Defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted,” claims the suit.
In other words, Pence, with no other authority or evidence, could determine which states got counted, and which states did not. The 1887 Electoral Count Act, according to the suit, is unconstitutional because it puts limits on that unlimited authority to decide what’s in, and what’s out.
It seems clear at this point that Gohmert was only acting as a stalking horse for Trump. It also seems clear that the real intent of the suit wasn’t to generate any kind of legal precedent, but simply to force Pence to act. Opposing the suit would also mean opposing Trump, and would send an early signal of Pence’s intentions on Jan. 6.
The signal on how all this would play out came just one day later when the Department of Justice stepped in to defend Pence. That came after Gohmert’s attorneys had a chat with Pence’s attorneys, offering what Gohmert’s team described as “a meaningful attempt to resolve the underlying legal issues by agreement, including advising the Vice President’s counsel that Plaintiffs intended to seek immediate injunctive relief in the event the parties did not agree.” In other words, Gohmert offered to drop the suit if Pence would just commit to the scheme to overturn the election results. Pence did not sign on.
Gohmert’s suit was rejected by the federal district court in Texas. This was followed by a thumbs down in the court of appeals. In both cases, judges ruled that decorating the suit with the names of people who would have been electors had Trump won did not give Gohmert standing to sue Pence for following the law.
At the time, it was easy to lose Gohmert’s suit in the sea of lawsuits that Trump’s legal team was launching against election results across seven states. The same team of attorneys who sued Pence for Gohmert were also responsible for some of the suits against the election outcome in Arizona—which is a pretty good clue to who was really calling the shots.
But a year later, it’s now clear that this suit was another piece of the plan represented by Eastman’s memo, Waldron’s PowerPoint, and the texts that were delivered to Meadows up to and during the assault on the Capitol. There was just one coup plot. And they were all in on it.