How Much Power Vice Presidents Really Have & Why JD Vance’s Comments Are Alarming Lawyers

Episode Notes

Transcript

Matthew Seligman:

In the 2028 election. If Donald Trump and JD Vance win, then JD Vance is the presumptive Republican nominee for president, which means that JD Vance is telling us right now that on January 6th, 2029, JD Vance will have the power to decide whether JD Vance becomes president. And that’s just not consistent with our Constitution. It’s not consistent with the political morality of the United States. We fought a revolution to reject authoritarian monarchical power, and I think we cannot risk putting ourselves in a position where we really have to question whether that’s going to happen.

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Today on Lawyer 2 Lawyer, we will discuss the power of the vice presidency, the presiding role over the electoral account, and clarify the role of the vice presidency. And to help us better understand today’s topic, we’re joined by guest Matthew Seligman, a fellow at the Stanford Constitutional Law Center. Matthew is a lawyer and legal scholar whose academic research focuses on election law with a particular emphasis on a disputed presidential elections Matthew’s book, how to Steal a Presidential Election. Co-authored with Harvard Law Professor of Lawrence Lessig was published in 2024 by the Yale University Press, and he recently wrote an op-Ed for the New York Times titled How JD Vance disqualified himself from Becoming Vice President. Welcome to the show, Matthew.

Matthew Seligman:

Thanks for having me.

J. Craig Williams:

Matthew, tell us a little bit about your role as a fellow at the Stanford Constitutional Law Center and how you became interested in particular in election law.

Matthew Seligman:

So my role at the Stanford Constitutional Law Center is a continuation of my academic career. I started out after law school, I clerked in DC and then I practiced law at a litigation boutique firm in dc. And after that, starting in 2016, I started teaching full time. So I taught at Harvard for several years and then at Cardozo in New York City. And then in 2020 I shifted to being a bit of a half academic and half practitioner. And the reason I did that is because the area that I had started researching disputed presidential elections became relevant in something more than just an academic sense. So since then I have had this dual role as an academic and as a practitioner, and Stanford has very kindly allowed me to set up shop at the Constitutional Law Center. I went to law school there. I know the director professor Michael McConnell very well. And so it’s a platform for me to continue writing and publishing academic work while I also work as a practitioner in election law.

J. Craig Williams:

That’s a really interesting background. Well, I really want to talk about your op-ed, but let’s first talk about the role of the vice presidency. What does it actually entail? What does the vice president do?

Matthew Seligman:

Well, the vice president sort of famously in Washington doesn’t have much responsibilities. The only qualification and the only job function to perform most of the time is to have a pulse. And the reason is because the Vice President’s primary function is to serve as a backup, an err and a spare as they say in the United Kingdom in case something happens with the president. Now, there are a couple of specific functions beyond just being present in case the need arises to step into the presidency and serving as the president of the Senate is the primary other function. Now the president of the Senate is a position that doesn’t usually have a lot of functions either. So the president of the Senate is the vice president when the vice president is in the room. Otherwise, that role is filled by the President pro tem of the Senate, which is usually the most senior member of the majority party.

So the primary function of the President of the Senate is to break ties. That’s how the Vice President ends up breaking ties when there’s a 50 50 vote. And Vice President Harris, because we do have a 50 50 Senate vice President Harris has cast dozens of such tie breaking votes. So that’s one function of the President of the Senate. The other primary function of the President of the Senate is to preside over the electoral count that happens on January 6th. And so this role comes from the 12th Amendment, which up until recently was an amendment that people didn’t think about very much. And the 12th Amendment says that the President of the Senate shall open the returns and the presence of the Senate and the House of Representatives and then the votes shall then be counted. And that second part of the Senate sentence is in the passive voice. And so there are some who made the argument that the president of the Senate who is the vice President counts the electoral votes. And so that claim whether the president of the Senate, the vice president just opens the certificates, this ministerial act or has some more substantive role, gave rise to a lot of disputes over the last several years.

J. Craig Williams:

Which side do you come down on?

Matthew Seligman:

Well, I come down on the side of the legal and historical fact that the President of the Senate has no substantive role in counting electoral votes or resolving disputes about electoral votes. If we look beyond the text of the 12th Amendment and look at the historical practice, it’s absolutely clear that from the very, very first electoral count, Congress and not the president of the Senate has controlled the count. Congress appoints some of its own members as tellers that are called that actually do the counting and the records, the Senate Journal, the House Journal, the Annals of Congress, going back to the very first electoral counts are very clear that the tellers appointed by Congress do the counting. And then when there has been a dispute that arose, and this happened several times in the 19th century, in the first half of the 19th century, Congress always resolved it.

There were these disputes, it’s almost like the mailbox rule for lawyers. There were these disputes where a territory became a state after the election but before the electoral count. And so there was a question about whether those territories turned into states whether their electoral votes were valid and could be counted. And that actually came up three times in 18 17, 18 21 and 1837. And each time Congress decided whether and how to count those electoral votes. So the history here is very clear that the President of the Senate has nothing more than this ministerial duty of opening the envelopes with the electoral votes in them. And that makes a lot of sense. The reason is because the president of the Senate is typically the vice president and the vice president has an enormous conflict of interest in the counting of electoral votes. Very often the vice president will be a candidate to be vice president again as Mike Pence was in 2020 and on January 6th, 2021. So not only was the claim that Mike Pence could decide whether Donald Trump won reelection as president, but the claim was that Mike Pence could decide whether Mike Pence won reelection as vice president and sometimes the vice president is a candidate to ascent to the presidency as is the case in this election cycle. So the claim would be that Vice President Kamala Harris gets to decide whether Vice President Kamala Harris wins the presidency. And that sort of extreme conflict of interest is just nonsensical and the Constitution doesn’t permit it.

J. Craig Williams:

Well, it could because let’s play it out. I mean the potential exists in the sense that if the Senate is the one that’s responsible for counting the ballots, and if the Senate hypothetically, of course this is law school, the Senate hit a 50 50 tie on the counting of the votes, the Vice President then would decide, right?

Matthew Seligman:

So that’s an open question. Now a couple of points of clarification. It’s not just the Senate alone that counts electoral votes. It’s the Senate and the House together. And from the very beginning, there’s been this unique constitutional entity that counts electoral votes. It’s the house in the room and the Senate in the room. And the process is, it’s varied a little bit over the centuries, but basically the House and the Senate have to agree about how to proceed. Now, you could theoretically have a situation where the Senate is split 50 50 and then who breaks the tie in the Senate to determine how the Senate would resolve that in conjunction with the House of Representatives. And that’s never come up, and that also is an open constitutional question, but I think that the answer to that constitutional question is best revealed by thinking about the structure more broadly where you have the Senate and the House of Representatives separately contributing to a decision about how to resolve a dispute about electoral votes.

And because there’s one Senate and there is one house that raises the question of what do you do if the House and the Senate disagree? And this is a problem that arose most starkly in 1876, the now famous disputed presidential election between Rutherford b Hayes and Samuel Tilden where the Senate said that Hayes won and the House of Representatives said that Tilden won and there was no agreed upon legal framework to resolve that dispute. What ended up happening is that the two chambers got together, they passed a statute that created an electoral commission that resolved the dispute. Now that’s another example of Congress and not the Vice President deciding how to resolve disputes about electoral votes. But the point here is that the constitutional framework on its own sets up this impossible situation where you could have a one-to-one tie between the House and the Senate about how to resolve disputes. So the bare constitutional framework permits these types of intolerable ties, unfortunately, and there’s not a constitutional mechanism to resolve them. And so what Congress has done for now hundreds of years as they passed the statute that decides how to resolve it,

J. Craig Williams:

Wouldn’t it make more sense to have the courts resolve it to complete the balance of power?

Matthew Seligman:

Yeah, I think that does make more sense. Now, one thing you might say is that, well, we should just have the electoral votes counted by say the Supreme Court. I think that makes good sense. You would need a constitutional amendment to do that, or you could pass a statute that just delegated that function to the Supreme Court. And there’s been something like that that’s been done twice. The first example was in what was called the Grand Committee bill of 1800, where it was realized relatively early on that you could have disputes about electoral votes, and it was understood that it would be good to have some kind of semi neutral or nonpartisan entity to resolve it. And so there was a bill that was introduced to create the So-called Grand Committee that would resolve these disputes. And so the Grand Committee would be composed of five members of the house, five members of the Senate, and then the Chief Justice of the United States would serve as the chair of the committee.

Now, this bill never became law, so there was a Senate version of the bill that passed, and then there was a house version of the bill that passed and they differed in sort of minor procedural ways, and in modern parlance, we would say it died in reconciliation. So the House and the Senate never agreed on a final version, which is too bad. Then we go forward to the Electoral Commission of 1877, and the Electoral Commission was composed of five members of the House, five members of the Senate, and then five Supreme Court justices. And so there has been this history of including the judiciary or at least justices of the Supreme Court in a statutorily created entity to resolve these sorts of disputes. Now, that’s I think a sensible way to go. The law that we have now tries to recreate that what it tries to do, and this is the Electoral Count Reform Act of 2022, which was passed in the aftermath of the troubles that we had in 2020.

What it tries to do is it tries to make the counting of electoral votes on January 6th really truly just an arithmetic exercise because it tries to make it so all actual disputes about the counting of electoral votes are resolved elsewhere by courts, and that once we get to January 6th, there’s supposed to be no disputes about this anymore. And so Congress is just supposed to count the electoral votes in the way that is dictated by the judicial resolution of whatever disputes there were. Now that was already true under the Old Electoral Count Act, but it was really unclear. And so the new Electoral Count Reform Act really clarifies that the judicial process results disputes about election results. Once those resolutions are reached, then Congress is supposed to count electoral votes in the manner that is dictated by those judicial resolutions.

J. Craig Williams:

Well, Matthew, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by Matthew Seligman, a fellow with the Stanford Constitutional Law Center, and we’ve been talking at some length about the process of picking electoral votes in it. Although we’re here to talk about the vice presidency, it just causes me to ask the question, have we finally exceeded the safety net that the electoral college provides us, and can we start to rely on the popular vote?

Matthew Seligman:

Well, I mean, I think there’s a theoretical answer to that and there’s a practical answer. The theoretical answer is that the principal complaint about the electoral college is that it makes millions of people’s votes irrelevant to the outcome. And so for example, I am speaking to you today from California, and California actually has more Republican voters than any other state in the country, and Texas has more democratic voters than any other state in the country. And nonetheless, a Republican vote in California doesn’t make much difference to the outcome of the presidential election. And a democratic vote in Texas doesn’t make much difference to the outcome of the presidential election either. And so the idea that everybody’s vote should matter just as much suggests that there’s a flaw with the electoral college. And there are other flaws as well that so much attention ends up getting focused on states that are close rather than the states where they have maybe the most urgent concerns or just the most populous states where there are the most people.

That’s the theoretical answer. The practical answer though is that it would almost certainly I think, take a constitutional amendment to provide a durable departure from the electoral college. What I mean by that is you’d have to have a constitutional amendment to actually abolish the electoral college, and that’s a very high bar. Procedurally, you have to have three quarters of states agree to do it. And because there’s the perception of a partisan advantage currently held by Republicans, but not always, it’s very difficult to get that many states to agree to abolish the electoral college. There is a potential statutory way to do this. There’s a proposed national popular vote compact among states that would try to recreate a national popular vote by saying that every state that’s part of the compact would allocate its electoral votes to whichever candidate won the national popular vote. And this is extremely clever.

It’s also not durable. The reason I say it’s not durable is that states could withdraw from this compact. There are questions about whether they could do so right before election, an election takes place, or if there would have to be some sort of notice period, et cetera. But those details aside, states could withdraw. And so that’s not a durable solution in the way that a constitutional amendment would be. So even though there I think is a strong moral argument in favor of leaving the electoral college behind, I think practically it’s just going to be very, very difficult to do.

J. Craig Williams:

Let’s talk about January 6th. We have Vice President Pence standing up for the interpretation of the Constitution that you offered, and we have JD Vance saying that had he been in Mr. Pence’s place, he would have chosen himself vice president and Donald Trump as president. What’s your reaction to that?

Matthew Seligman:

I think it’s dangerous. I think it’s gravely dangerous. It’s an indication that JD Vance is telling the country what Donald Trump wants him to say, and he’s saying that he would’ve exercised extra constitutional powers to preserve Donald Trump in office. And in that hypothetical, you rightly point out, and to keep himself in the vice presidency, that’s a stunningly anti-democratic assertion of power. It is a stunningly authoritarian rejection of the rule of law. And these are the sorts of red lines. It is a Rubicon that we really can’t cross that the outcome of elections are resolved. The ordinary processes of law ultimately involving the courts, which whatever you say about the courts, they certainly are more neutral and committed to the rule of law on the question of the outcome of elections than the politicians who are participating in those elections are. So for JD Vance to say that he would have done this to me is wholly disqualifying from holding the power of the office that he’s now candidate to hold.

But it’s even worse than that because Donald Trump is term limited, and although he sometimes muses about the possibility of staying in power for a third or a fourth term, I think that is probably too far even for Donald Trump, which means that in the 2028 election, if Donald Trump and JD Vance win, then JD Vance is the presumptive Republican nominee for president, which means that JD Vance is telling us right now that on January 6th, 2029, JD Vance will have the power to decide whether JD Vance becomes president. And that’s just not consistent with our Constitution. It’s not consistent with the political morality of the United States. We fought a revolution to reject authoritarian monarchical power, and I think we cannot risk putting ourselves in a position where we really have to question whether that’s going to happen

J. Craig Williams:

And what do we do to prevent it?

Matthew Seligman:

Well, I think there are a couple of answers to that. The short answer is when a political candidate runs on the platform of a threat to abuse the constitutional powers of the office they’re running for, the first answer is don’t give them that power. So we are now 27 days away, 26 days away from the election. To me, as a voter, I think that the threat to abuse the Constitution in such a blatantly anti-democratic way and authoritarian way is all the reason I need to decide not to vote for that candidate. More broadly though, I think that vance’s statements about this are a symptom of a broader problem in American political life, which is that there’s been a weakening allegiance to democracy and the rule of law, it’s part of a broad trend that transcends national borders. You see this happening in Europe and elsewhere as well, where large groups of people are no longer, no longer trust institutions, and one set of institutions they don’t trust is the government in deciding election results, which is why you get all these conspiracy theories about voter fraud, about undocumented immigrants or non-citizens voting about electronic voting machines allegedly being hacked, and the conspiracy theories get wilder from there.

And none of that is true, but the fact that people believe it is a symptom of a broader problem. And so you have these factual conspiracies that find fertile ground in a distrustful segment of the population. And then this is something like legal conspiracy theory. It’s a conspiracy about what the law and the Constitution say. People are willing to believe it. And that is a symptom of the fact that it was fertile ground for conspiracy theories. People marched on the capitol on January 6th, 2021. They were chanting Hang Mike Pence. The reason why they were chanting that is because someone told them the lie that Donald Trump had won the election, and someone told them the lie that Mike Pence had the power to do something about it. And the fact that there were people who were willing to commit violence in service of those two lies is the deeper problem that we need to solve.

J. Craig Williams:

Right. Well, Matthew, it’s time for us to take another break to hear a word from our sponsor. We’ll be right back. Welcome back to Loiter Lawyer. I’m back with Matthew Seligman, a fellow at the Stanford Constitutional Law Center, and we’ve been kind of leading up to this, but we’ve had on this show as guests at the same time, Dean Irwin Chesky and Dean John Eastman as former guests with very interesting conversations. But you’ve served as an expert witness for the California Barnes Disbarment proceedings against Mr. Eastman. Talk to us about that.

Matthew Seligman:

John Eastman served as a personal lawyer for former President Trump in December and January of 2020 and 2021, and he was, I think it’s fair to say he was the primary legal advisor to former President Trump on the issue of whether Vice President Pence had the power to intervene in the electoral count on January 6th. And there’s some factual dispute about exactly what advice Mr. Eastman gave to former President Trump and then Vice President Mike Pence. But Mr. Eastman has said in public, and he said under oath that he advised that Mike Pence had some power to take some unilateral action, whether that was rejecting electoral votes or whether that was delaying electoral count over the will of Congress and sending it back to the States. So he advised Trump and Pence that the vice president had the power to intervene and interfere unilaterally with the electoral count that along with other conduct he engaged in during that period of time in relation to the 2020 election testifying before the Georgia State Legislature, I believe, statements in public, he spoke on the morning of January 6th in the rally that President Trump held on the ellipse just outside the White House, repeating these factual conspiracy theories of fraud and a stolen election.

And so in the aftermath of that, the California bar brought a disciplinary proceeding against Mr. Eastman. Eastman is a California lawyer, and I was asked to serve as an expert witness on the question of the Vice President’s constitutional powers and other related constitutional issues and testify against Mr. Easton. Now, that trial took place over about six weeks in the summer of 2023, and then earlier this year, the trial judge ruled and recommended easement for disbarment.

J. Craig Williams:

That’s an amazing process. Let’s talk a little bit about your op-ed piece from the New York Times entitled how JD Vance disqualified himself from becoming vice President. You’ve told us about how he disqualified himself as a basis for the stance he would take on January 6th. Is that the sole basis?

Matthew Seligman:

That’s the primary basis, but I want to zoom out a little bit here. I think that depending on how you look at it, either the generous or the most cynical interpretation of vance’s behavior here is that he’s just telling. He’s just saying what Donald Trump wants him to say and that he doesn’t really believe it. JD Vance is a smart guy by all accounts. He’s very well educated. When you hear him speak, he sounds like a smart guy. And so the either generous or cynical interpretation of what he’s doing here is that he’s just saying what he knows that Donald Trump wants him to say. There’s a reason why Mike Pence is not Donald Trump’s running mate right now. The reason he’s not is because Mike Pence wasn’t willing to go along with the conspiracy theories about the 2020 election, and he wasn’t willing to assert this unconstitutional power to intervene in the electoral count on January 6th.

That’s why Mike Pence isn’t there. And so JD Vance understands that in order to be Donald Trump’s running mate, the price of admission is your commitment to these factual conspiracy theories that Trump actually won the 2020 election and this conspiracy theory about the vice president’s powers. So that’s the price of admission, and I think that the price of admission is perhaps higher still. It’s his soul because what he’s saying here is that he’s willing to do and say anything to acquire the power of the vice presidency, that he’s willing to lie to the American public about who won the 2020 election, that he’s willing to lie about the constitutional powers that he will have and all of that just to become vice president. And so what he has done here is he has told us, he has manifested, he has shown us that he’s willing to lie and he’s willing to assert unconstitutional powers just to become vice president.

What do we think he’s going to do when the position on the line, it’s not just the vice presidency, but the presidency itself. So it’s not just a matter of, oh, if we take him at his word, then we are at risk. If that’s all it were, then well, you could maybe say, eh, well politicians lie. We don’t have to take it too seriously. But what he has shown us is that he’s willing to say anything and do anything to acquire power simply by telling the lies that he’s telling right now. And that I think more than anything else shows that he can’t be trusted with that power.

J. Craig Williams:

On CBS Sunday morning a couple episodes ago, there was a series on the finished culture where they teach children at a very young age to discern fake news. And the comment at the end of the segment was that in Finland, we believe you have your right to your own opinion, but not a right to your own facts. Matthew, it looks like we’ve just about reached the end of our program. So it’s time to invite you to share your final thoughts and provide your contact information to our listeners to reach out to you and find out about your book.

Matthew Seligman:

Well, my book, how to Steal a Presidential Election with my co-author, Lawrence Lessig, Harvard Law Professor, it arose from a course we taught together at Harvard Law School in the fall of 2020 called War Gaming 2020. And so we worked through all the different strategies that we could possibly imagine to steal a presidential election through manipulating the legal process. And so we taught that course in real time in the fall of 2020. And then after what happened after January 6th, we decided to write this book that walks through the different strategies that a political party could engage in a political movement coalition could engage in order to reverse the legitimate results of an election. And the question that it tries to answer is based on the idea of a lack of good faith that the legal system is catastrophically vulnerable to manipulation because it’s not designed in the way that is best suited to guard against bad faith. But even if it were designed well that you can’t guard entirely against bad faith manipulation of the system. So the book starts from that premise and then looks at the various legal strategies that could be employed, and as we now turn to the final days before the 2024 election, those strategies are all still available. That book is a presentation of our ideas of what we think the most serious risks to our legal system for electing a president, what those risks are. So I encourage everyone to take a

J. Craig Williams:

Almost a guide of what not to do.

Matthew Seligman:

Indeed.

J. Craig Williams:

Matthew, as we wrap up, I’d like to thank you very much for being on our show today. It’s been an absolute pleasure.

Matthew Seligman:

Thanks for having me.

J. Craig Williams:

Well, here are a few of my thoughts about this subject. I think that Professor Seligman is exactly on track, and as we pointed out at the end, how to steal a presidential election points out all the ways you really shouldn’t be doing it, but it’s good that it’s laid out there for the courts to fall along with it and written by prominent professors like Professor Lesick and Professor Seligman. Interesting that we’ve had the experience of having John Eastman and Irwin Chesky on at the same time discussing constitutional issues. Go back and take a listen to those and light of what’s happened these days and perhaps do a recap of that. It would be an interesting discussion to have perhaps with Professor Rinky. In any event, that’s what I think about today’s topic. If you like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us on legal talk network.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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