One of the least examined X factors in the Jan. 6 saga is this: the possibility that Vice President Mike Pence might have recused himself from the counting of electoral votes in Congress.
Given that Pence ultimately played a decisive role in thwarting Donald Trump’s attempts to overturn the election that day, and that some in Trump’s orbit apparently gamed out and even desired Pence’s recusal, it is valid to ask what might have happened if he had not been at the Capitol on Jan. 6, 2021.
We apparently came closer to finding out than we realized. ABC News reported Tuesday that on Christmas Eve 2020, Pence had momentarily decided against presiding, in part because it would be “too hurtful to my friend.” ABC also reported that Pence has testified that Trump personally suggested that he recuse. (The Washington Post has not independently confirmed the reporting.)
“Not feeling like I should attend electoral count,” Pence wrote in notes obtained by special counsel Jack Smith, according to ABC. “Too many questions, too many doubts, too hurtful to my friend. Therefore I’m not going to participate in certification of election.”
Pence testified that he reversed course after a conversation with his son, who cited the vice president’s constitutional duty, according to ABC. The date of that conversation is not clear, but it came at some point during a trip that Pence took to Colorado, which records indicate lasted from Dec. 23 to Jan. 1.
It is the first evidence that Pence had actually leaned toward recusing himself, and that Trump had personally suggested it. But it is hardly the first evidence that it was under consideration and that certain people on Trump’s side had angled for it. We previously detailed the publicly available evidence on this episode, some of which has not received much attention. Here is how the new disclosures fit into the timeline:
Unknown date: Trump suggests Pence might skip the Jan. 6 session of Congress, according to the ABC report on his testimony.
Early December: Pence and his legal counsel, Greg Jacob, discuss potential recusal and whether Pence has a conflict of interest, according to testimony by Jacob before the Jan. 6 committee. Jacob said Pence asked, “Has any vice president ever recused from the role of doing this on the grounds that they are interested in the outcome of the election?” Pence’s staff later reports back that Hubert Humphrey sat out such proceedings in 1969, leaving the job to the Senate president pro tempore.
Dec. 13: Trump lawyer Kenneth Chesebro in a memo floats a detailed scenario in which Pence steps aside. The scenario cites Senate president pro tempore “Chuck Grassley or another senior Republican who agrees to take on the role of defending the constitutional prerogatives of the President of the Senate.”
Dec. 23: Trump lawyer John Eastman writes an email to Chesebro and others that references not wanting to “constrain Pence (or Grassley) in the exercise of power they have under the 12th Amendment.”
Dec. 23: A Grassley aide emails a Pence aide asking if there is “any reason to believe that your boss will not preside over the electoral college vote count,” according to the Jan. 6 committee transcripts. Pence aide Paul Teller says that “it’s not a zero percent chance of that happening.”
Dec. 24: Pence concludes he will not preside, according to his notes, ABC reported.
Sometime by Jan. 1: Pence’s son, a Marine, persuades him to preside, citing the oaths they both took to support and defend the Constitution, according to ABC.
Jan. 5: Grassley sets off a brief tempest by telling the media, “If the vice president isn’t there, and we don’t expect him to be there, I will be presiding over the Senate.” A news report initially casts this as Grassley saying that Pence will be absent from the electoral college certification, but his actual comments appeared to refer to a separate session of the Senate, which his office swiftly clarified.
It is worth noting that what may have been a (momentary) decision by Pence came just after a Grassley aide reached out to his office about such a scenario and the Pence aide suggested it was on the table. So this was a possibility that plenty of people had been thinking and talking about.
For the better part of three years, those Grassley comments on Jan. 5 have spawned theories about how he might have been part of the plot. The new details in the timeline, as laid out by the ABC report, do not indicate that Grassley was in on anything, and he has flatly denied that he was. (Grassley and his office have denied ever being approached about such an arrangement.) In fact, both that timeline and the testimony of top Pence aides suggest this was off the table well before Jan. 5.
But a growing volume of evidence indicates that, at least at some point, a Pence recusal was a real possibility. The question is why. Thus far there are no definitive answers, but there are clues. Grassley, like many Republicans, kept relatively quiet after the election. He was not a vocal election denier. He noted that the process should be allowed to play out. He said shortly after the election that “there could be fraud” but that “I personally haven’t seen any” that would be enough to change the results.
But at times Grassley suggested the election was effectively over. On Nov. 9, his office told a local editorial board “it appears Joe Biden will be the next president.” A few days later, he pushed for Biden to receive classified briefings in preparation for his ascension. When the electoral college voted Dec. 14, Grassley was asked whether he acknowledged that Biden was president-elect, and he said, “I don’t have to. The Constitution does.” His office would go on to call Biden the “president-elect” in a Dec. 22 statement.
Grassley did not join the handful of Senate Republicans (and many House Republicans) in objecting to the election results on Jan. 6. And after the Capitol riot, he praised Pence for refusing to “kowtow” to Trump’s entreaties to overturn the election. In other words, Grassley would have seemed a less-than-ideal candidate for taking the unprecedented step of trying to overturn the election, a step that Pence ultimately refused to take.
At least for now, the reason some people angled for Grassley to replace Pence appears to boil down to the fact that Pence was not fully onboard and that Grassley was next in line. Another possible reason is that substituting Grassley and having him help overturn the results might have looked like less of a conflict of interest than it would have for Pence, who would effectively have been reinstalling himself as vice president.
Chesebro wrote in a Dec. 13 memo that “politically this will insulate” Pence “and the President from what will happen next. For it is much easier for someone acting as President of the Senate to defend the prerogatives of the office if he has no conflict of interest” other than a partisan interest, which is unavoidable.
There is still little reason to believe the plan to have Pence removed from the equation would have resulted in a different outcome. But as we learn more, it has become clearer that this was a desired variable on Trump’s side and that Trump’s demand for personal loyalty almost led us down a different, and unpredictable, path at a consequential time.
