Donald Trump furiously claimed Tuesday night that Mike Pence can overturn the election result single-handed in Congress Wednesday - and denied the vice president had told him he could not.
The president issued a statement after the New York Times reported that Pence had told him over lunch that he had no constitutional power to 'decertify' states' slates of electors when he presides over Congress to certify the election result.
But Trump called that 'fake news' then outlined an extraordinary plan to either get Republican state legislatures to send Trump electors - or turn the election to Congress under the 12th Amendment, which could then vote for Trump.
'Decertifying' the results would plunge the country into a constitutional crisis but Trump claimed that Pence was in 'total agreement' that he 'has the power to act.'
Trump's statement publicly turned the heat up on Pence after a pressure campaign which has been going on in private for weeks and exploded into the public on Monday night at Trump's Georgia rally, then on Twitter Tuesday.Insurance Loans Mortgage Attorney Credit Lawyer
'The New York Times report regarding comments Vice President Pence supposedly made to me today is fake news,' Trump said in a statement issued by the White House.
'He never said that. The Vice President and I are in total agreement that the Vice President has the power to act.
'The November 3rd election was corrupt in contested states, and in particular it was not in accordance with the Constitution in that they made large scale changes to election rules and regulations as dictated by local judges and politicians, not by state legislators. This means that it was illegal.
'Our Vice President has several options under the U.S. Constitution. He can decertify the results or send them back to the states for change and certification.
'He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation.'
Significantly, however, the statement was not signed by Pence - and the legal claims Trump made appeared to be in line with plans outlined by Rudy Giuliani, not the Senate Parliamentarian who has advised Pence that his powers are limited to confirming the electoral college votes read out on the floor of Congress.
Pence was reported by the New York Times to have delivered the bad news over lunch, the New York Times reported, sugaring the pill by suggesting he could in some way acknowledge Trump's discredited claims when he presides over the Senate.
Ahead of the traditionally ceremonial event, President Donald Trump had escalated his pressure campaign on Pence to help him overturn the election results and spend another four years in the White House.
'The Vice President has the power to reject fraudulently chosen electors,' the president tweeted on Tuesday morning, wrongly stating what Pence can do when he is in the presiding chair.
But shortly after when the two met for their regular lunch, Pence delivered the bad news that he could not.Insurance Loans Mortgage Attorney Credit Lawyer
The New York Times reported that Pence also told Trump to lighten the blow that he would keep 'studying the issue' until the joint session begins at 1pm Wednesday.
In fact Pence spent hours this week with the Senate Parliamentarian, who advises senators and the vice president on the rules when they are on the floor of the Senate - or in Pence's unique case, presiding over the joint session certifying the election.
Delivering bad news: Mike Pence was spotted at the White House Tuesday after Trump had tweeted that the vice president could disqualify Electoral College votes. Pence was on his way to tell Trump that he could not
Trying to lighten the blow: Mike Pence told Trump he might attempt to 'acknowledge' his claims of fraud - partly driven by his own fear that confirming Joe Biden's victory will be used against him
Trump's tweet is false and Pence does not have the power the president claims he has
Truth to power: Donald Trump demanded publicly Monday night at his rally in Georgia and then on Twitter that the vice president aid his campaign to overturn the election. Pence told him Tuesday he could not
If a member of the House and Senate both object to one of the state's slates of electors, the two chambers split to debate the objection for two hours - with Pence presiding over the Senate.
That is when he could offer some 'acknowledgment' of Trump's claims about fraud to ameliorate both the blow to his boss, and the potential for the president to turn on his ultra-loyal deputy in the dying days of the administration, and beyond.
Pence is said to be particularly concerned that his certification of Biden's victory could be weaponized against him on social media.
His delivery of bad news to Trump came after a lawsuit brought by Louis Gohmert, an ultra-loyalist congressman, which demanded that federal courts say Pence could disqualify electoral college votes was dismissed rapidly by a judge and an appeals court.
That legal move would have offered Pence some cover that he could point to judges as having ruled out the possibility that he could disqualify voters - which no vice president had ever done and which constitutional experts had said was simply legally impossible.
But an 'acknowledgment' of Trump's claims represents a Pyrrhic victory for the president - with Republican senators dealing his campaign to have them vote against approving swing states' votes a series of blows Tuesday, as more and more said they would not get behind it.
Senators Tim Scott and Jim Inhofe became the latest GOP lawmakers to risk the wrath of Trump with their decision to back Biden - at least 23 Republican senators will vote to certify Biden's election win
Senators Tim Scott and Jim Inhofe became the latest GOP lawmakers to risk the wrath of Trump with their decision to back Biden.
'As I read the Constitution, there is no constitutionally viable means for the Congress to overturn an election wherein the states have certified and sent their Electors. Some of my colleagues believe they have found a path, and while our opinions differ, I do not doubt their good intentions to take steps towards stamping out voter fraud,' Scott said in a statement.
Inhofe also cited the Constitution as his reason.
'My job on Wednesday is clear, and there are only two things I am permitted to do under the Constitution: ensure the electors are properly certified and count the electoral votes, even when I disagree with the outcome,' he said in a statement.
More and more Republican senators joined in as the clock ticked toward Wednesday, including Senators Jerry Moran and John Boozman.
Moran said the plan to object would 'risk undermining our democracy–which is built upon the rule of law and separation of powers.'
And Boozman made a similar argument.
'Under the Constitution, Congress does not have the legal authority to change the outcome,' he said. 'These principles are enshrined in the Constitution to ensure the American people, not the party in control of Congress, have the power to choose their president.'
At least 24 Republican senators will vote to certify Biden's election win, according to a count by Politico while 13 are supporting Trump. And 14 are undecided. The Senate is short one senator as David Perdue's term ended January 3rd. The winner of Tuesday's special election in Georgia will take the seat.
It takes a simple majority of 51 senators to sustain the objection to a state's electoral college result, upending it.
But with all 48 Democrats unlikely to do so and the 24 Republicans joining them, that's 72 votes for Biden, leaving Trump's hopes in the dust.
Senator Ted Cruz, who is leading the objection effort, will challenge the results of Arizona on Wednesday while Senator Kelly Loeffler will likely lead the objection when it comes to the results in her home state of Georgia. Senator Josh Hawley, another GOP leader in the movement, will challenge Pennsylvania's.
The focus of the objections would be on those three states - down from the original six lawmakers originally discussed.
Even without the outcome highly unlikely to go Trump's way there is bound to be plenty of fiery floor debate and political theater.
But Trump may not get a mass gathering of Republican lawmakers protesting on the floor.
The House Sergeant at Arms and Capitol physician sent a memo to lawmakers Tuesday evening about the joint session, requesting that 'access to the Floor of the House will be limited to those Members who are scheduled to speak during the joint session.'
And for Pence, who has walked the tight rope of Trump's presidency for four years without faltering, what he does Wednesday will be the ultimate loyalty test, at least in the eyes of the president, who is publicly putting on the pressure.
Trump has made it clear he expects his second-in-command to keep him in the White House even if Pence does not legally or constitutionally have the power to do so.
'I hope Mike Pence comes through for us. He's a great guy,' Trump told a campaign rally Monday night in Dalton, Georgia. 'Of course if he doesn't come through I won't like him quite as much.'
The 12th Amendment is the fundamental law behind Congress certifying the election on Wednesday. But it is also one of the most complicated parts of the Constitution, starting with a 202-word multi-clause sentence. Here is its full text.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Ultimately, Biden is expected to be certified as the winner of the election on Wednesday, which Pence, in his role as president of the Senate, is expected to announce after the certification is complete.
Pence's role in Wednesday's session is largely ceremonial but he will have to balance his constitutional duties with a reluctance to anger Trump and his power political base.
But, despite the pressure campaign, Trump cannot grant powers by tweet, leaving Pence limited in what he can legally do.
The 12th amendment of the Constitution - along with the Electoral Count Act of 1887 - makes it clear Pence's role is to make parliamentary rulings. It does not include any power in how Congress counts the electoral votes.
When it comes to a conflict between the House and