Representative Louie Gohmert, R-Texas, and members of the House Freedom Caucus hold a press conference to call on Attorney General William Barr to release the findings of an investigation into the 2020 election fraud allegations outside the Capitole, Thursday, December 3, 2020.
Tom Williams | CQ-Roll Appeal, Inc. | Getty Images
The Justice Department on Thursday criticized a desperate Republican-led trial to overturn President-elect Joe Biden’s electoral college victory, calling the case against Vice President Mike Pence a “walking legal contradiction.”
The DOJ said in a new court filing that Representative Louis Gohmert of R-Texas and 11 Arizona Republicans had “sued the wrong defendant” – Pence – in the case.
And senior DOJ officials have urged a judge to dismiss the request that he issue an emergency injunction that purportedly empowered Pence to ignore constituency votes from a handful of battlefield states that gave to Biden his margin of victory over President Donald Trump.
Next week, Pence will chair Congress when it meets to certify Biden’s victory.
Gohmert’s lawsuit calls on Federal Judge Jeremy Kernodle, appointed by Trump in the US Court for the Eastern District of Texas, to declare that Pence has “exclusive authority and sole discretion” to decide which electoral votes for a given state should be counted.
Republicans are calling on Kernodle to provide that power to Pence by striking down key sections of the 1887 Electoral Tally Act, a law they claim contradicts the 12th Amendment.
Gohmert’s claim contradicts legal experts who say that Pence’s role, or the role of any vice president, is to preside over the count of votes submitted by the Electoral College, not to judge which are valid or no.
Pence is the sole defendant in this case – a fact that John Coghlan, the assistant deputy attorney general of the DOJ’s civil division, brought to light as he argued against the injunction.
“Prosecuting these plaintiffs is not an appropriate way to resolve these issues because the plaintiffs sued the wrong defendant,” Coghlan wrote in a court record.
“The vice president – the only defendant in this case – is ironically the very person whose power they seek to promote,” Coghlan wrote.
“The Senate and House, not the Vice President, have legal interests which are sufficiently unfavorable to complainants to form an Article III case or controversy. The Respondent respectfully requests that the Complainants’ Emergency Motion be dismissed because the relief sought by the Complainants does not properly lie against the Vice President. “
Coghlan also suggested that if there was a suitable target for Gohmert’s pursuit, it would be the House and Senate, not Pence.
“Indeed, logically, it is these bodies against which the plaintiffs’ claims for redress must be brought.”
Later Thursday, a House of Representatives lawyer filed his own brief, which urged Kernodle to drop the case.
“Put aside Rep. Gohmert’s claims – for which he clearly lacks quality – this case is just another attempt by the defeated Arizona election candidates to overturn the popular vote results in their state,” Douglas Letter wrote. , Advocate General of the Chamber.
“Arizona plaintiffs tried and failed to overturn the election in lawsuits they brought in Arizona state and federal courts,” Letter wrote.
“So they are now asking this Texas court to help them achieve what they did not do in Arizona. This court should reject the plaintiffs’ proposal to overturn a cornerstone of our nation’s democratic processes.”
The last-minute Republican trial follows dozens of failed attempts by the Trump campaign and his allies to ask the courts to overturn or invalidate electoral votes for Biden.
Many House Republicans have supported some of these efforts, including an offer from Texas Attorney General Ken Paxton to have the United States Supreme Court cancel the results of four key swing states. The High Court refused to hear this case.
Some Republican lawmakers plan to challenge the election results at the congressional meeting next Wednesday. Missouri Republican Josh Hawley this week became the first senator to take that milestone.
If a member of the chamber and a senator jointly oppose a state’s voters list, the two chambers must debate separately and then vote on the objection.
Experts say there is no real chance to annul the result of the election. Pence has shown no indication that he will accept these objections or otherwise seek to overturn the election.