Reminder of how the effort to persuade Pence to disregard electoral procedure argued. Not that this would have worked, but it should be noted that John Eastman is one of the most elite conservative law professors in the country and was among those suing on Trump's behalf to overturn state election results last year. He was even a speaker at the January 6 DC rally.

1.VP Pence, presiding over the joint session (or Senate Pro TemporeGrassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).

2.When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States.This would be the first break with the procedure set out in the Act.

3.At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” –the language of the 12th Amendment--is 454.This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe(here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

4.Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote. . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

5.One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one—a constitutional no-no(as Tribe has forcefully argued). So someone –Ted Cruz, Rand Paul, etc. –should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.

6.The main thing here is that Pence should do this without asking for permission –either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position --that these are non-justiciable political questions –thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.
His most 'benign' contribution to the 2020 election was an op-ed that Kamala Harris is not an American citizen, and that the 14th Amendment does not confer citizenship on persons born in American jurisdiction.

Last month he was, pursuant to the allegedly illegitimate and unprecedented federal pandemic measures (such as they even exist) that are constitutive of a "cold civil war," arguing for Republican states' "robust assertion" of state police power to preempt federal authority. Use cases being state border controls, eminent domain, "high-intensity demonstrations" in major cities, displacing the national currency with cryptocoin, and independent enforcement of "individual civil rights."

I hope Democratic politicians take notes, at least some of the time. "Those who have the power take and those hold who can."