The Vice Presidency Was Created Precisely for This Moment

January 5, 2021 Updated: January 9, 2021

The world will be watching Vice President Mike Pence in the United States on Jan. 6 when he presides over what will be more than a formal meeting of the Senate and the House of Representatives, part of the process culminating in the presidential inauguration.

How fortunate then that providence has given the United States a Vice President of the rigour, honour, and dedication of the incumbent.

A change of administration will obviously have a greater impact than one normally does, both on America and the world.

According to the prominent broadcaster, Mark Levin, Joe Biden is but a “Manchurian candidate.”

Levin says that Biden is compromised by the Chinese Communist Party (CCP), as revealed in the Hunter Biden scandal. Certainly, the Obama-Biden administration, in which Biden was vice president, encouraged the advance of Communist China, making little effort to control either its constant breach of World Trade Organisation obligations, currency manipulation, the acquisition and even theft of intellectual property, the breach of international law in the South China Sea, military aggrandizement, aggression against neighbours, the threats against Taiwan, or the gross breach of human rights of the Chinese people. Instead, the Obama-Biden administration saw its role as managing American decline, little supportive of the concept of American exceptionalism.

While the United States may constitutionally elect any qualified person as President, it is difficult not to contrast Joe Biden and his long Washington career with the incumbent President Donald Trump. To many, Trump is among the greatest of American presidents, however much such a view will attract ridicule from the elites. So much so that I, with three most eminent Australian law professors, decided that there were more than sufficient grounds to propose him for the award of the 2021 Nobel Peace Prize.

This of course does not mean that power should not be transferred and cannot be peacefully transferred away from him constitutionally. An obvious condition is that the transfer be constitutional.

2020 has not been an ordinary election. A large part of the country and the world is confirmed in the view that it was tainted by massive fraud. Even if this were as totally and wholly unjustified as a strangely incurious mainstream media insists and a social media of declared non-publishers requires on its platforms, such a widespread lack of confidence in the integrity of the electoral process would still be a cause for serious concern.

That is why the proposal by eleven senators and senators-elect led by Senator Ted Cruz is so attractive. There, Congress follows the precedent established concerning the serious allegations of fraud and illegal conduct in the Hayes-Tilden 1876 presidential race where the elections in three states—Florida, Louisiana, and South Carolina—were alleged to have been conducted illegally.

The Cruz proposal is to appoint an electoral commission with full investigatory and fact-finding authority to conduct an emergency 10-day audit of the election returns in disputed states. Once complete, individual states would evaluate the commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.

Accordingly, the senators have indicated that they intend to vote on Jan. 6 to reject the electors from disputed states as not “regularly given” and “lawfully certified” (the statutory requisite), unless and until that emergency 10-day audit is completed.

This stands the chance of restoring the confidence of the people in the integrity of the electoral system and of the fundamental institutions of the United States.

As to the claimed failings in the election, and notwithstanding the suspicious media insistence that there is no evidence, there are in fact mountains of highly persuasive supporting evidence, both direct (including thousands of affidavits made under penalty of perjury, identified documentary and video support ) and circumstantial.

To an Australian with even a minimal experience in electioneering, the coup de grâce must be the contrived absence of and then obstacles placed in the way of Republican observers (as Australians say “scrutineers”)—something totally unacceptable in the land where the secret or Australian ballot was devised.

It is inconceivable that anyone would dare exclude or neutralise observers (scrutineers) as openly, as sweepingly, and as contemptuously in Australia as has occurred in the United States. It is inconceivable in Australia that counting without scrutineers would be allowed to proceed in the dark of night. It is equally inconceivable in Australia that the media could—without ridicule, widespread contempt, and a collapse of circulation and ratings—dare be so ostentatiously incurious and so insistent that there was “nothing to be seen.”

Indicative of the corruption of much of the mainstream media has been the contempt to their audiences in almost all, mainly cursory, reports of fraud. These have invariably involved the insertion of the adjective “baseless” or some synonym before the noun “fraud.”

This may be contrasted with the enthusiastically endorsed reporting over four years of demonstrably groundless claims against the president and, in particular, in relation to the charge of Russian collusion.

The constant repetition of the line that the claims of fraud are baseless and the general silence on the substantive grounds of the constitutional case brought by Texas suggest that many of those advancing them just do not in their hearts believe them. This is nothing less than “preference falsification,” a phenomenon explained elegantly by the social scientist Timur Kuran in his 1995 book “Private Truths, Public Lies.” Indeed, this is probably the most telling example of “preference falsification” in the history of the political world outside of communist and totalitarian countries.

That the Supreme Court and lesser courts have almost invariably refused to hear the evidence, but found technicalities for not so doing, reflects most likely on if not the independence, the lack of courage on the part of too many of the judges. This is admittedly in a country where Democrat-aligned Marxist paramilitaries have run rampant with impunity during the year in Democrat-run cities.

As to the process over which the vice president presides as president of the Senate, it must be recalled that the vice president’s powers comes from the Constitution itself, and is not merely ceremonial. Recall that Alexander Hamilton explained the Founders anticipated through the process established that an extraordinary person would be found, one who may at any time be required to act in the supreme executive magistracy. His or her role as president of such joint meetings as that to be held on Jan. 6 was neither clerical nor as a messenger or servant. This was to be an important constitutional role for occasions that they could not anticipate precisely but which they knew from their own experience and from Anglo-American history would require decisiveness and good judgement to preserve the constitutional polity.

Whatever the contested validity and effect of the detailed compromises of the Electoral Count Act of 1867, it cannot bind a future congress.

It is, after all, a fundamental constitutional truth that a river cannot rise higher than its source. This Act cannot change and certainly not reduce the powers the Constitution vests in the vice president in the approval of what are lawful votes, which will ascertain the emergence or not of a president and vice president.

Nor is the vice president limited under the 12th Amendment to making a ruling before or after any objection is made, or before or after debates and votes in the House and Senate, or in reviewing any prior ruling.

This would not be the first time when it has been assumed that such a post, which is a crucial constitutional check and balance, has been dismissed by some as purely ceremonial, powerless, and a mere bauble.

In 1975, when the Australian government under Prime Minister Whitlam looked as though it would, in American terms, be closed down through the Senate withholding supply or funding because of a financial scandal, unless and until the Prime Minister agreed to an election, Governor-General Sir John Kerr acted. This was on Nov. 11, the last possible day on which an election could be called before the long Christmas holidays, which fall in summer in Australia.

Sir John dismissed the government with the stroke of his pen, appointing the opposition leader as caretaker prime minister on condition he advised an election. This was held within three weeks with the opposition winning in a landslide. The Indonesian dictator asked why Whitlam did not have the Governor-General arrested for launching a coup. This was not but an exercise in referring a political and not a constitutional crisis to the people for immediate resolution.

The office of vice president is similarly dismissed as decorative, powerless, and unimportant except in the event of a succession. Such minimalisation was not the Founders’ intention. As Hamilton said, the incumbent would be an extraordinary person whose appointment would not be through the Senate but through the Electoral College process. Nor should the vice president be expected to become a substitute for the president in the “supreme executive magistracy”; he or she has a defined sphere of supreme magisterial authority, especially in the wide sphere of authority under the 12th Amendment.

The only constraint is as his judgement under God guides him. The point is that the degree of evidence of massive fraud produced so far constitutes a strong prima facie case, one which has in no way been rebutted. All there has been is an empty chorus of denial.

If the Cruz plan were to prevail by the two houses agreeing (which is unlikely) and fraud were found in all swing states with the Republican legislatures acting, as suggested, the result could be, on my calculations, that Donald Trump would prevail.

If the Cruz proposal were not accepted but the vice president rejected the swing state votes as not ‘regularly given’ and ‘lawfully certified’ on the unrebutted ground of fraud, the immediate consequence would depend on whether the necessary majority were still 270 or reduced by the unexercised swing state votes to 227. If the latter, Donald Trump would immediately win, if the former neither would. This would then go to a contingency election by the House of Representatives voting by state delegations with Donald Trump the expected winner.

If the Vice President were to make any such rulings, it might be expected the Supreme Court would be moved by various grandees to restrain him. Given the justices reluctance hitherto to intervene , any intervention would be interpreted as biased. This Court seems to opine that this is all non-justiciable ; having gone down that path it would be a mistake to reverse that as it would be productive of greater division. It could even leave the Supreme Court ignored, as occurred under Abraham Lincoln.

In summary these are indeed tumultuous times.

David Flint, A.M., is an Emeritus Professor of Law and served as chairman of the Australian Press Council and of the Australian Broadcasting Authority.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.