DOJ opposes Republican suit that seeks to have Pence overturn Biden election in Trump’s favor

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Rep. Louie Gohmert, R-Texas, and members of the House Freedom Caucus conduct a news conference to call on Attorney General William Barr to release findings of an investigation into allegations of 2020 election fraud, outside the Capitol on Thursday, December 3, 2020.

Tom Williams | CQ-Roll Call, Inc. | Getty Images

The Department of Justice on Thursday slammed a desperate Republican-led lawsuit to reverse President-elect Joe Biden’s Electoral College win, calling the case against Vice President Mike Pence “a walking legal contradiction.”

The DOJ said in a new court filing that Rep. Louis Gohmert, R-Texas, and 11 Arizona Republicans have “sued the wrong defendant” — Pence — in the case.

And top DOJ officials urged a judge to reject the request that he issue an emergency injunction that purportedly would empower Pence to ignore the Electoral College votes from a handful of battleground states who have given Biden his margin of victory over President Donald Trump.

Pence next week is scheduled to preside over Congress when it meets to certify Biden’s win.

Gohmert’s suit asks federal Judge Jeremy Kernodle, a Trump appointee in U.S. Court for the Eastern District of Texas, to declare that Pence has the “exclusive authority and sole discretion” to decide which electoral votes from a given state should be counted.

The Republicans ask Kernodle to deliver that power to Pence by striking down key sections of the 1887 Electoral Count Act, a law they claim contradicts the 12th Amendment.

Gohmert’s claim conflicts with legal experts who say that Pence’s role, or the role of any vice president, is to preside over the counting of the votes submitted by the Electoral College, not to judge which ones are valid or not.

Pence is the sole defendant in the case — a fact that John Coghlan, the deputy assistant attorney general for the DOJ’s civil division, highlighted as he argued against the injunction being issued.

“These plaintiffs’ suit is not a proper vehicle for addressing those issues because plaintiffs have sued the wrong defendant,” Coghlan wrote in a court filing.

“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 the House, not the Vice President, have legal interests that are sufficiently adverse to plaintiffs to ground a case or controversy under Article III. Defendant respectfully request denial of plaintiffs’ emergency motion because the relief that plaintiffs request does not properly lie against the Vice President.”

Coghlan also suggested that if there was any proper target for Gohmert’s suit, it would be the House and Senate, not Pence.

“Indeed, as a matter of logic, it is those bodies against whom plaintiffs’ requested relief must run.”

Later Thursday, a lawyer for the House of Representatives filed his own brief, which urged Kernodle to dismiss the case.

“Setting aside Representative Gohmert’s claims — for which he clearly lacks standing — this case is simply another attempt by defeated Arizona electoral nominees to overturn the results of the popular vote in their state,” wrote Douglas Letter, general counsel for the House.

“The Arizona plaintiffs have tried and failed to overturn the election in suits they filed in federal and state courts in Arizona,” Letter wrote.

“Thus, they now ask this Court in Texas to help them achieve what they failed to do in Arizona. This Court should reject plaintiffs’ bid to overturn a cornerstone of our Nation’s democratic processes.”

The last-ditch Republican suit follows dozens of failed attempts from Trump’s campaign and his allies to have courts reverse or invalidate electoral votes for Biden.

Numerous House Republicans have supported some of those efforts, most notably a bid from Texas Attorney General Ken Paxton to have the U.S. Supreme Court cancel the results of four key swing states. The high court refused to hear that case.

Some Republican lawmakers are planning to contest the election results when Congress meets next Wednesday. Missouri Republican Josh Hawley this week became the first senator to take that step.

If one House member and one senator jointly object to a state’s slate of electors, the two chambers must separately debate and then vote on the objection.

Experts say there’s no real chance of overturning the outcome of the election. Pence has shown no indication that he will entertain those objections or otherwise seek to overturn the election.

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