By Dan Lawton
Part IIOn December 8, 2020, the first contingent election of a U.S. president of the modern era got underway right after the 117th Congress was sworn in on the floor of the House of Representatives. All the lawmakers were haggard, exhausted. Some of the younger freshman representatives showed the telltale signs of having slept in their offices the night before. A lot of them couldn’t afford a second mortgage or rent payment in the capital. In the mornings they rose from their couches and showered and shaved in the House gym locker rooms.
The chaplain today was Fr. Dan Tumulty, a Catholic priest from San Diego. A little flushed and quite pleased with himself, perfectly-coiffed and resplendent in his custom-tailored black suit and Roman collar, he made his way up the aisle. Today he was standing in as honorary chaplain, at the invitation of his Congressman, Juan Vargas, a Democrat from San Diego. Back home, Tumulty was friendly with a real estate tycoon, Doug Manchester, who saw to it the dapper churchman had a full membership at a posh country club in Del Mar and a new luxury sedan every couple of years. A few years earlier, Tumulty had discreetly nudged along a Vatican-approved annulment of Manchester’s long marriage to the mother of his five children, clearing the way for the randy old magnate to marry a Russian mail-order bride who was much younger than himself. Behind Tumulty's back, some of his flock in San Diego called him Father Hollywood.
“Let us bow our heads and pray,” said Tumulty, in his smooth, Bing Crosby voice.
Tumulty offered a rambling invocation, fervently imploring the Lord to guide the women and men there assembled to do right as God gave them to see the right and put bickering and personal differences aside in the interest of protecting and preserving and so forth. It went on for a while.
After it stopped, a partial, half-hearted “Amen” rose from the floor. Tumulty stood down, yielding to the Speaker of the House, Nancy Pelosi. The Speaker looked almost regal in her own custom-made, royal blue Akris jumpsuit. She called the House to order. By rule, each state’s delegation was going to get five minutes at the microphone. They would go in alphabetical order, starting with Alabama.
Like Carl Albert, Tip O’Neill, and Newt Gingrich before her, Nancy Pelosi had mastered the most important skill of any Speaker. That was knowing how to count. Like an auditor peering at a balance sheet through green eye shades, she eyed the spreadsheet laid out in front of her. It listed each state, the names of its representatives, and the votes which Pelosi’s operatives and allies had told her were expected that morning.
It would be close, she knew. But the arithmetic was inexorable. There was no way Trump could get to 26. Biden had the numbers, by a small margin.
Alabama and Alaska went for Trump. That was OK.
Then Raúl Grijalva, the beefy senior member of Arizona’s delegation, came to the lectern and adjusted the mic. He seemed to be huffing and puffing, and his bolo tie, which featured a chunk of polished jade cut in the shape of his home state, looked a notch a mite tight around his ample neck.
“Madame Speaker,” Grijalva said, looking ruefully into the C-SPAN camera lens a few feet in front of him. “The State of Arizona must regretfully announce it must abstain from voting in this matter.”
A swell of gasps and whispers washed through the chamber like surf and echoed back, then reverberated.
Pelosi banged her massive gavel, bam! bam! bam! bam! bam! She kept banging it until the din subsided.
“Abstain?” said Pelosi. She arched her black eyebrows, which seemed like they sat halfway up her forehead, in disbelief.
Grijalva apologized. His colleagues, he said, had not shown up, and all of them were uncontactable. There was a report a crew of Antifa people were holding three of them hostage underground in a copper mine near Bisbee, Arizona.
Grijalva was a Democrat. But he felt duty-bound not to presume what his colleagues would have voted today, he said.
OK, a hiccup, Pelosi thought. It’s just one vote.
On went the roll call.
Biden was racking up the votes -- Connecticut, Delaware, D.C., Florida, Hawaii, Illinois, Maryland, Massachusetts, Minnesota -- just as the spreadsheet predicted.
But when New Jersey’s representative, Frank Pallone, took his turn, Pelosi noted the look in his eye as he walked up to the lectern. It’s bad news, she thought. The Speaker felt a sudden wave of nausea surge through her body. Pallone had just told her last night New Jersey was a sure Biden vote.
Pallone had some bad news all right.
A couple of New Jersey’s twelve representatives had experienced travel difficulties of their own, he said. One of them, he said, had last been seen at the edge of the New Jersey Pine Barrens, after cutting the ribbon at the opening of a new park ranger station there. He had glad-handed everyone and posed for photos before disappearing with a couple of men into a black sedan, which sped off, supposedly for the Newark airport, but never arrived.
Chris Smith, the sole Republican member of the state’s congressional delegation, was pro-Trump. But he and Frank Pallone, a Democrat who loved Joe Biden, were the only ones there from New Jersey.
“In good conscience, Madame Speaker,” Pallone said -- Pelosi rolled her eyes and stopped listening.
New Jersey was abstaining too.
Pelosi wondered what might be in store.
Things returned to normal. Pelosi checked each box as she went down her spreadsheet -- New York, Oregon, Pennsylvania, Rhode Island. Getting there -- almost there.
“Vermont,” said Pelosi.
But the state’s sole representative, Peter Welch, a tall, genial lawyer, was nowhere to be seen.
Welch had been there for Tumulty’s prayer, during which he had been seen laughing and chatting with another congressman at his desk. But just after Pelosi had started calling the roll, Welch had ducked out, headed for the cloakroom. He hadn’t come back.
Pelosi’s voice rose.
“The State of Vermont, please,” she said.
It was right then when everyone in the chamber heard the muffled sound of a woman screaming. A couple of burly Capitol police officers in the back hustled in the direction of the scream, toward the cloakroom.
What the fuck is it now? Pelosi thought, exasperated. Her family and friends knew she never cursed out loud. They didn’t know she cursed silently all the time.
When the officers burst into the cloakroom they found the body of Rep. Peter Welch, age 73. Welch lay on the heavy carpet alongside one of the heavy dark brown leather chairs. His skin was blue. His sightless eyes stared at the ceiling. His jaws were completely agape, his lips drawn tightly around what looked like a big round glass object wedged in his mouth.
One of the officers bent over Welch and pulled it out. The foreign object was a glass jar of pure Vermont maple syrup. Welch, age 73, was dead, asphyxiated.
Back in the chamber, when order was restored, congressman Juan Vargas, the former Jesuit seminarian and Harvard-trained lawyer, rose from his seat.
“Point of order, Madame Speaker,” said Vargas. “This entire proceeding has been sabotaged, by what appears to be a cynical and carefully-orchestrated series of criminal acts perpetrated by rogue elements acting at the behest of Donald J. Trump!”
The shouting and cries arose in a storm, No! Madame Speaker! Madame Speaker!
It was pandemonium.
Out of sight, paramedics were steering a gurney bearing the lifeless body of Peter Welch to an ambulance outside.
Pelosi resumed the vote.
“My fellow Americans,” she said. Her voice quivered. The steely Speaker was ever graceful and strong in the storms of the crises that had come one after another in the last four years. Now she looked on the verge of tears.
“It is my duty to inform you,” she said before pausing and looking down.
Everybody else could count too.
Between the three abstentions and another three states whose congressional races were still tied up in the House Oversight Committee over disputes about voter fraud, six states were missing in action.
Biden had 24 votes, two shy of a winning majority.
Trump had 20.
It was a deadlock.
On TV, Toobin, Dershowitz, Pirro, and the rest of them were all dumbstruck. It had never happened before, except on “Veep,” an HBO sitcom.
No one really understood the twelfth amendment very well in the first place. President James Madison had announced its ratification in 1804. It said that, in the event of a deadlock in the House, the Senate would convene, to choose a new vice president. The vote of a majority of senators would then decide who the new vice president would be, as between the two highest Electoral College vote-getters, Joe Biden and Donald Trump. One would become vice-president, then be sworn in as president on January 20, 2021.
In the White House Trump raged to his inner circle. It was crazy, he said. He paced around and around the Oval Office, his orange spray-on tan sliding slowly off his sweaty cheeks. There was no way he could lose in the Senate, he said. There were some other things he would rather do than give up the White House. He started listing them. One of them, he said, was squatting pantsless over a flaming hibachi grill with a handful of M-80s inserted into his lower gastrointestinal tract, or words to that effect.
In the wee hours of the morning of December 11, news websites and TV screens seemed to explode like a crazy pyrotechnic display. From his den in Long Beach, Joe Ducey watched, scarcely believing what the talking heads were saying now.
Kamala Harris delivered an astonishing bit of news in a press conference at the grand front entrance of San Francisco’s city hall. Citing “mental exhaustion,” Joe Biden had withdrawn from the presidential race and been admitted to a hospital at an undisclosed location. There he was resting and receiving unspecified treatment. Jill and the rest of his family were with him. Harris asked that everyone keep Joe Biden in their prayers. He was a great American, she said, whose long record of service and love of country were unequaled by anyone alive. The anguished cries and shouts of the assembled reporters drowned out the rest of her statement.
“What about the election?” asked a reporter from Fox News.
Harris gave the young man her sternest prosecutorial glare.
“The electors of most of the states are free to cast their votes for a replacement candidate that is nominated by the Democratic Party,” she said. “Mr. Biden has asked the party to nominate me as his replacement. If that were to happen, as I hope it would, then I would ask the electors to honor his wishes and cast their electoral votes for myself.”
“Didn’t the Supreme Court outlaw that last year?”
The shouted question came from a young, geeky-looking print reporter from the Fresno Bee. He looked like he might still be in high school. But he had done his homework. Electors were duty-bound not to vote contrary to the will of the voters in their states, the court had ruled, in a case called Chiafolo v. Washington. If those states had gone for Biden, they couldn’t throw their votes to Kamala Harris any more than they could vote for Donald Trump.
“Wouldn’t they be faithless electors? Chiafolo v. Washington? Right?”
Harris thanked them all for coming and disappeared inside amid a mass of overcoat-clad security men with earpieces and aviator sunglasses.
Trump learned of the extraordinary turn of events in his private indoor golf tee box on the second floor of the White House. Right away he summoned Brian Panish, Mike Meadows, and Jared Kushner.
The men entered just as the president finished a big swing, an image of the ball sailing toward the flag and high above the fairway on the big screen. It looked like a 250-yard drive, maybe longer, or so the screen said. Meadows wondered whether Trump had had a tech support guy tinker with the equipment, to make his synthetic drives look straighter and longer than they really were.
The men found the president clad in a white track suit and a pair of red golf shoes. A red number 45 emblazoned the left vest of the suit. His hair, part burnt-orange, part straw-blonde, was every which way this morning.
“I know you’re not supposed to be happy when someone else crashes and burns,” Trump exulted. “There’s a German word for it, right, Jared? Schnaudenfest? Something.”
“Schadenfreude,” his son-in-law replied, evenly. “Maybe we shouldn’t be celebrating yet. Don’t you think Kamala Harris could be a problem? What about the Senate?”
“We’ve got the numbers in the Senate, dummy,” Trump said. He laid down his driver and walked off to get showered and exfoliated and then hit the tanning bed.
In every state which had gone to Biden on November 3 -- Connecticut, Delaware, D.C., Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington -- the electors did as they were told. They announced their intent to deliver their votes to Kamala Harris when the time came before a joint session of Congress, in a ceremony that was usually a formality, on January 5, 2021.
It wouldn’t be enough to get Harris to 270 any more than it had been for Joe Biden.
But it was something.
All she had to do now was win in the Senate.
On December 18, 2020, a week before Christmas, John Ducey and millions of other Americans tuned in to watch the first-ever contingent election of the vice-president as it began in the Senate chamber. The clerk called the roll as Mitch McConnell, the majority leader, and Mike Pence, the sitting vice president, gazed down from their perches. Every one of the hundred senators was present and accounted for. After the fiasco in the House, McConnell and the minority leader, Chuck Schumer, had seen to that.
On paper, the GOP had the numbers, of course – 53 to 47. But Mitt Romney, the junior senator from Utah, despised Trump with a white-hot righteous Mormon passion. For company, Romney had three GOP colleagues – Susan Collins, Lisa Murkowski, and Ben Sasse. All four of them had backbones. And all were sick to death of Trump's river of misspelled horseshit tweets and general abuse which the president ladled out to them and any other Republican who dared not pledge him their undying toadying fealty.
All four cast their votes for Kamala Harris.
Lindsey Graham and some other Bible Belt senators raised hell, a slew of objections under the Senate's byzantine rules of procedure. But McConnell, who knew more about the rules than anybody, gaveled them down into sullen silence.
It was all over in ninety minutes.
Looking mournful, the majority leader announced the result, in a voice that sounded like a bereaved mortician's.
It was Harris 51, Trump 49.
On CNN, Anderson Cooper, Wolf Blitzer, and the rest of the CNN political team could barely contain their euphoria.
Kamala Harris would be the new vice president and then ascend to the presidency. There were thirteen days to go before the inauguration.
Brian Panish had the new lawsuit challenging the result all ready to go, of course. It accused McConnell of having violated Senate rules in overruling Lindsey Graham's objections. Panish filed the complaint, entitled Trump v. Harris, within minutes after Mike Pence, white as a sheet, left his seat, seemingly in a daze, and vanished out the back door of the chamber.
With January 20 creeping closer by the day, the courts expedited their rulings in the case of Trump v. Harris.
On January 4, 2021, the D.C. Circuit ruled that the Senate had correctly followed its own rules. Kamala Harris was veep-ascendant. There was no president-elect. But it didn’t matter. Unless the Supreme Court stepped in, Kamala Harris could start preparing for her inauguration on January 20.
In Part III, the legal battle between Trump and his opponent winds up in the U.S. Supreme Court.
➽ Dan Lawton is a lawyer and writer in California.