We apparently came closer to finding out than we realized.
ABC News reported Tuesday that on Christmas Eve 2020, Pence 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.
“Not feeling like I should attend electoral count,” Pence reportedly 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 reportedly testified that he reversed course after a conversation with his son, who cited the vice president’s constitutional duty. The date of that conversation isn’t clear, but it reportedly came at some point during the Pences’ trip to Colorado, which records indicate lasted from Dec. 23 to Jan. 1.
It’s the first evidence that Pence actually leaned toward recusing himself — and that Trump personally suggested it. But it’s hardly the first evidence that it was under consideration and that certain people on Trump’s side angled for it.
We previously detailed the publicly available evidence on this episode, some of which has not received much attention. Here’s how the new disclosures fit into the timeline:
- Unknown date: Trump suggests Pence might skip the Jan. 6 session of Congress, according to ABC News’s report on Pence’s testimony.
- Early December 2020: Pence and his legal counsel, Greg Jacob, discuss potential recusal and whether Pence has a conflict of interest, according to Jacob’s testimony before the House 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 then-Senate president pro tem “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 Jan. 6 committee transcripts. Pence aide Paul Teller responds that “it’s not a zero percent chance of that happening.”
- Dec. 24: Pence concludes he won’t preside, according to his notes, as reported by ABC News.
- Sometime by Jan. 1: Pence’s son persuades him to preside, citing the oaths they both took to support and defend the Constitution, according to ABC News’s report on Pence’s testimony. (Pence’s son is a Marine.)
- 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 report initially casts this as Grassley saying Pence will be absent from the certification, but Grassley’s actual comments appeared to refer to a separate session of the Senate, which his office quickly clarified.
It’s worth emphasizing that what may have been Pence’s (momentary) decision 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 were thinking and talking about.
For the better part of three years, those Jan. 5 Grassley comments have spawned theories about how he might have been part of the plot. The new details in the timeline, as laid out by ABC’s report, don’t 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 in the post-election period. He was not a leading election denier. He emphasized 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 he suggested the election was effectively over. On Nov. 9, his office told a local editorial board that “it appears Joe Biden will be the next president.” In mid-November, he pushed for Biden to get classified briefings in preparation for his ascension. When the electoral college voted on 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 news release.
Grassley did not join a handful of GOP senators (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 historically 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 wasn’t fully onboard and that Grassley was simply 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 his 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, of course, a [partisan] interest, which is unavoidable).”
There’s still little reason to believe that the plan to get Pence removed from the equation would have resulted in a different outcome.
But as we learn more, it’s becoming 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 historically consequential time.
