A central element of Donald Trump's plan to overturn the election relied upon Vice President Mike Pence. As Vice President, Pence served as the President of the Senate, the presiding officer for the joint session of Congress on January 6th. Beginning in December, and with greater frequency as January 6th approached, Trump repeatedly and unlawfully pressured Pence in private and public to prevent Congress from counting lawful electoral votes from several States.
To understand the plan President Trump devised with attorney and law professor John Eastman, it is necessary to understand the constitutional structure for selecting our President.
At the Constitutional Convention 233 years ago, the framers considered but rejected multiple proposals that Congress itself vote to select the President of the United States.[143] Indeed the Framers voiced very specific concerns with Congress selecting the President. They viewed it as important that the electors, chosen for the specific purpose of selecting the President, should make the determination rather than Congress:
It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.[144]
The Framers understood that a thoughtful structure for the appointment of the President was necessary to avoid certain evils: "Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption."[145] They were careful to ensure that "those who from situation might be suspected of too great devotion to the president in office" "were not among those that chose the president."[146] For that reason, "[n]o senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of the electors."[147]
Article II of our Constitution, as modified by the Twelfth Amendment, governs election of the President. Article II created the electoral college, providing that the States would select electors in the manner provided by State legislatures, and those electors would in turn vote for the President. Today, every State selects Presidential electors by popular vote, and each State's laws provide for procedures to resolve election disputes, including through lawsuits if necessary. After any election issues are resolved in State or Federal court, each State's government transmits a certificate of the ascertainment of the appointed electors to Congress and the National Archives.
