If you once served as Vice President of the United States, polling below 5% in your own party's presidential primary can trigger a stream of unbridled bitterness.

Case in point: Mike Pence, who, in a Real Clear Politics poll published through August 2, 2023, polled at 4.8 percent among Republican voters, trailing the previously-unknown Vivek Ramaswamy, who had 5.2 percent.

Like a freezing cold bucket of reality splashed onto Pence’s face, losing to a 37-year-old entrepreneur who, six months ago, nobody ever heard of, has apparently unleashed the floodgates of animosity harbored deep within. Embittered by his demise, Pence now fumes against President Trump,  the man to whom he owes the Vice Presidency, seemingly siding with rogue prosecutor Jack Smith.

“I had no right to overturn the election,” Pence told CNN. ”And on that day, President Trump asked me to put him over the Constitution. But I chose the Constitution. And I always will.” He rambles on. “Anyone who puts themselves over the Constitution should never be President of the United States.”

Really, Pence? You “chose the Constitution,” did you?  That’s your spin? The President asked you to “overturn” the election? To put himself over the Constitution? He said that?

Actually, the President suggested sending questionable electors back to state legislatures, for proper consideration, in states where highly irregular tactics had seemingly undermined the election.

If, after further consideration, Biden still won, then Biden won.

Despite Pence’s “I was for the Constitution and Trump wasn’t” nonsense, the truth is the Constitution doesn't address the issue, one way or the other. It isn’t like some constitutional clause decrees that “the President shall not  ask the Vice President to send electors back to certain states for certification or clarification.”

The only reference to the Vice-President’s role is in the Electoral College Clause (Article II, Section 1, Clause 3), which provides that the President of the Senate (The VP) shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted."

Some self-anointed “constitutional scholars,” say that the VP has no discretion in the Electoral College count, and that his role is primarily “ceremonial.”  In other words, they claim the VP can count, and nothing else. That’s their opinion. But a quick search of the Constitution reveals no reference to the word “ceremonial.”

To the contrary,  at least some evidence exists historically that the VP’s role is more than ceremonial. In the 1960 election, after a razor-thin back-and-forth between Nixon and Kennedy in Hawaii, Hawaii sent two competing sets of electors to Washington.

Upon receiving the competing slates, Vice President Nixon made a discretionary decision. Rather than freezing up, as Pence did, and claiming the Constitution didn’t allow him to act, Nixon opened envelopes from competing electors, then presented both sets of Hawaii’s electors to Congress, three for Kennedy and three for himself. He then moved that the Democrat slate be counted.

In other words, Nixon served as judge over the count, even though the Constitution did not specifically address the procedure Nixon followed. By the way, nobody prosecuted the alternate electors from Hawaii, under some concocted bizarre Jack Smith-like legal theory.

Both Nixon and Pence, and other VPs since 1877, operated under the Electoral Commission Act of 1877, passed after the contentious 1876 election between Rutherford Hayes and Samuel Tilden.

The 1877 Act did not limit the VP’s role only to something ceremonial, but instead, established a procedure for handling competing electors from each state.

The Act established a special Electoral Commission with fifteen members, including five members from the Senate, five members from the House, and five Supreme Court Justices.

Pence could have arguably sent disputed electors to that Commission. Instead, he acted as if he had no authority to do anything.

After the 2020 Election, Congress amended the 1877 Act to declare that the VP’s role is only “ministerial in nature.” But as President Trump has asked, if the VP’s role were merely “ministerial” or “ceremonial” to begin with, why now pass a law declaring it ministerial?

Back to Pence’s ‘I’m for the Constitution but Trump is not” babblings,

The Constitution is silent on whether Pence, prior to the count, could send electors back to the states for clarification. Pence didn’t want to rock the boat. That’s on Pence. 

But Pence suggesting some clear-cut constitutional divide where he defended the Constitution, while Trump opposed it, is beyond disingenuous.

Had Pence said, “The President I simply disagreed on a legal interpretation,” that would have been one thing.

But to portray himself as a Constitutional Hero, and Trump as a villain, such exaggerated bombast undermines the faith that Pence so frequently claims to embrace.

Perhaps Pence should learn that defending the Constitution might mean not turning a blind eye, without question, to questionable circumstances that on the surface resemble rampant cheating.

“The courts have spoken,”  Pence and his RINO allies like to claim.

But consider this:  what court heard evidence on what we saw in the State Farm Arena in Atlanta, where election officials shut down, sent Republican poll watchers home at 10 PM, then pulled out pull long black boxes of ballots and ran them through counting machines with no Republican observers present?

What court considered ballot-stuffed truckloads to the TGY Center in Detroit, in the dark, early morning hours, where Michigan,  like Georgia and four other states, suddenly shut down at 10:00, with Trump winning big time?

What court heard evidence shown in the documentary 2000 Mules, evidence on  hundreds of thousands of ballots stuffed into drop boxes in the dark of the night, with nobody looking, without any identifiable chain-of-custody as to their source?

The answer?  Zero. Most courts found form-over-substance reasons to avoid election fraud cases, many citing “standing” as their reason for dismissal.

Not even the Supreme Court, which 20 years earlier, in Bush v Gore, found that different counting procedures in different counties violated the 14th Amendment’s  Equal Protection Clause, would touch this hot potato. Texas v. Pennsylvania in 2020, made Florida’s hanging chad controversy look like a harmless Romper Room party. But SCOTUS wouldn’t touch it.

Trump had every right to ask questions.

Perhaps Pence, if he were concerned about constitutional integrity, should have pushed a little harder, too. “On that day,” as Pence calls it, he seemed all too eager to pal it up with Nancy Pelosi, once the deed was done.

Wallowing in bitterness from the realization that he couldn’t get elected dogcatcher, Pence now aligns with the Anybody but Trump RINOs, alongside Bill Kristol, George F. Will, and “Lincoln Project” champagne-sippers like George Conway.

Just be honest, Mike. You interpreted the law differently -- probably from fear -- to justify inaction. And that’s your right.

But you’re no constitutional hero. So stop with the false bravado. Your newfound role of whining prevaricator doesn’t suit you well.

Don Brown, a former U.S. Navy JAG officer, is the author of the book Travesty of Justice: The Shocking Prosecution of Lieutenant Clint Lorance and CALL SIGN EXTORTION 17: The Shootdown of SEAL Team Six, and the author of 15 books on the United States Military, including three national bestsellers.  He is one of four former JAG officers serving on the Lorance legal team. Lorance was pardoned by President Trump in November 2019.  Brown is also a former military prosecutor, and a former Special Assistant United States Attorney.  He can be reached at donbrownbooks@gmail.com and on Twitter @donbrownbooks.

Image: Gage Skidmore