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Dear All: Despite the passage of two centuries, Thomas Jefferson's conduct as Presiding Officer of the Joint Session of Congress in determining the Electoral College winner of 1800 is becoming increasingly significant as a precedent for the upcoming presidential election of 2026. I discuss the episode at length in The Failure of the Founding of the Fathers (Harvard Press), as well as its contemporary significance, which is why the Wall Street Journal has asked me about it: https://www.wsj.com/politics/elections/why-thomas-jefferson-crops-up-in-trumps-arguments-over-fake-electors-and-jan-6-86a980a Bruce
Wall Street Journal (September 1, 2023) Why Thomas Jefferson Crops Up in Trump’s Arguments Over Fake Electors and Jan. 6 There are comparisons with the predicament of Mike Pence, but they only go so far
By Annie Linskey
at
WASHINGTON—In 1801, after the young nation’s fourth election, Vice President Thomas Jefferson faced a choice in his constitutional role to certify the results: He could reject Georgia’s tally because
the paperwork was defective—or he could accept the defective paperwork and set himself up for victory.
More than two centuries later, that long-lost-to-history decision resurfaced as relevant to the aftermath
of the 2020 election and the
legal quagmire now surrounding former President Donald
Trump.
On Jan. 6, 2021, it was Trump’s vice president, Mike
Pence, whose role was to certify the results of the electoral vote before a joint session of Congress as he faced intense pressure from Trump and his supporters to reject Electoral College tallies from key states and send them back to the legislatures,
even though both the Electoral College count and the popular vote gave Biden his victory.
The pressure on Pence was the culmination of frenzied planning by Trump and his allies over how they could create a slate of alternate electors—state representatives picked by the
party or candidate who formally cast presidential ballots based on the popular vote—from narrowly decided states to produce a Trump victory.
Pence became the plotters’ last chance on the deadline day for certifying the election, making the vice president the target of Trump supporters as they stormed
the Capitol and called on him to refuse to legally certify the election. Pence stood his ground, saying he had no leeway under the Constitution to do anything other than conduct the process by which the results of the Electoral College were counted and
certified.
Trump’s and his allies’ actions are now at the heart of two criminal cases. In a federal case in Washington, Trump is accused
of conspiring to overturn the election; in Georgia, he and 18 allies are accused
of racketeering to fabricate a victory for Trump in the state. Trump and the others deny any wrongdoing.
Where Jefferson comes in relates to whether Pence had more authority than he exercised.
Jefferson, who was President John Adams’s vice president, was a leading candidate for president among several on the 1800 ballot at a time before the
modern Republican and Democratic parties came to dominate electoral politics.
If Jefferson accepted the results from Georgia, albeit submitted with faulty paperwork, his vote tally would give him a tie in the Electoral College, throwing his candidacy to the
House of Representatives where he finally prevailed after 36 rounds of voting. If he rejected Georgia’s results, with the prospect in those days that it would take weeks for a resubmission with the paperwork fixed, it could have
sparked a Constitutional crisis, as
Bruce Ackerman and David Fontana wrote in a 2004 article in the Atlantic.
America’s nascent democracy had faced a similar issue four years earlier, Ackerman and Fontana noted. In 1797, then-Vice President John Adams was the leading contender in the presidential
race when he oversaw the Electoral College count as president of the Senate. The paperwork from Vermont, which was favorable to him, was under question for its validity.
Jefferson urged his fellow Southerners not to dispute the Vermont ballots so that “substance and not form should prevail,” he wrote to James Madison, according to The Atlantic. Yielding
to “the choice of the people,” he wrote, would “prevent the phaenomenon of a Pseudo-president at so early a day.” Adams counted the Vermont ballots and became president.
Jefferson embraced that same approach in February of 1801 when he accepted Georgia’s faulty paperwork and eventually won his first presidential term as the nation’s third chief executive.
The rest, as they say, is history.
Trump’s lawyers have since described that Jefferson incident as justifying why they believed Pence had the authority to reject Electoral College ballots from several states, including
Georgia. Trump has added his own twist, making clear that he didn’t want Pence to do exactly what Jefferson did because Jefferson ultimately accepted the ballots, and Trump wanted Pence to reject them, paving the way for new ones showing falsely that Trump
had won.
“Mike
Pence had the right, in my opinion, to send them back,” Trump said in an interview last week with Tucker Carlson on X, formerly known as Twitter. “I was really disappointed, and I didn’t want to do what Thomas Jefferson did.”
There are key differences of course. Jefferson wasn’t seeking to change the way Georgia votes were reflected, which was the goal of Trump and his team.
“There was no question about what actually the vote was,” said Ackerman, a Yale law professor who has researched the 1800 episode. “It’s a deficiency that is a technical deficiency,”
he added.
“It wouldn’t make sense to have one person sitting there deciding on who the next president is, because that violates all sorts of basic principles of constitutional law,” added Fontana,
now a law professor at George Washington University.
There were no challenges to Jefferson’s decision at the time, additional evidence that he was acting within established norms. The same can’t be said of what Trump asked Pence to do.
A Trump spokesman didn’t respond to a request for comment.
Trump, in his Carlson interview, conjured up a colorful, but undocumented, scene of how Jefferson conducted himself during the certification process in the U.S. Capitol.
“I didn’t want to do what Thomas Jefferson did. Thomas Jefferson, it was Georgia, and it was, ‘Hear ye, hear ye, the great state of Georgia is not capable or allowed to tabulate their
votes,’ ” Trump said in the Carlson interview, attributing a quote to Jefferson that is not supported by any historical records. “He didn’t send them back to have them redo it.”
In the weeks leading up to Jan. 6, 2021, Trump’s team seized on the idea that Jefferson’s precedent gave Pence the right to reject state paperwork, making the argument in a memo circulated
within the highest echelons of the Trump administration. “This was their grand theory that Pence could overturn the election,” said Marc Short, then-Pence’s chief of staff, in an interview.
Trump’s team, including John Eastman, used other historical examples as well, Short said. They pointed to 1960 when Hawaii sent two slates of electors
to Congress because of a pending recount. In that case, then-Vice President Richard Nixon recognized the slate that favored his rival, John F. Kennedy, who became the nation’s 35th president, he said. They also pointed to the 1796 election when Adams contended
with Vermont’s voting irregularities, according to a report on the events of Jan. 6 by a House of Representatives’ committee.
Privately, Eastman, a former constitutional law professor who advised Trump during the 2020 transition, conceded that there were problems with the legal theories he wanted Pence to
use, according to the Jan. 6 report.
Eastman acknowledged that in the 1800 example, there was no question that Georgia voters gave their support to Jefferson, according to an account given to the committee by Greg Jacob,
Pence’s vice presidential counsel. Eastman also conceded that if the vice president had the authority to determine which votes counted, “you could never have a party switch thereafter” because the vice president would have no incentive to certify an opponent’s
win, according to Jacob’s account.
Eastman is one of Trump’s co-defendants in the Georgia case; he faces arraignment next week. Charles Burnham, an attorney for Eastman, didn’t respond to a request for comment. Eastman
has denied wrongdoing.
Congress in December included a provision in a spending bill to clarify that the vice president’s role in the electoral certification process is ministerial and doesn’t include sole
authority to reject slates of electors. Trump told Carlson that showed the validity of his argument: If the law subsequently had to be clarified, then Pence had discretion at the time.
“The Vice President did have the right to do it,” Trump said.
Write to Annie Linskey at annie.linskey@wsj.com
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