But Pence, in a 14-page lawsuit filed by Justice Department prosecutors, said the case should not be directed at him, as it is he who Gohmert is trying to empower.
“A process to establish that the vice president has discretionary power over counting, brought against the vice president, is a walking legal contradiction,” said Pence’s document.
U.S. District Court Judge Jeremy Kernodle, appointed by Trump, did not schedule a hearing on the case.
Gohmert’s lawsuit, filed on Sunday, maintains that the Electoral Counting Act of 1887 – a law brought about by the disputed presidential election of 1876 – is unconstitutional because of the structure it imposes on the process of receiving each state’s electoral votes.
According to the procedures of the Electoral Counting Law, the vice president – who presides over the Chamber – opens the group of voters of each state in alphabetical order. The law also establishes a process by which lawmakers can challenge sets of voters, triggering debates and votes in the House and Senate.
In the case of the 2020 election, Gohmert is among dozens of Republican Party lawmakers who intend to oppose Biden’s victory, citing unfounded allegations of fraud. But these challenges seem doomed in a Democratic-controlled House and in a divided Senate, where a number of Republicans say there is no evidence to reverse Biden’s victory.
Gohmert is asking the courts to override the rules altogether, which would leave the twelfth Amendment’s vague language as the only guide to the process. In that language, Pence would be the final decision maker on which electoral votes to present to Congress.
The Chamber’s general counsel, Doug Letter, made a formal appearance in the case on Thursday afternoon, and the Pence petition says the House must present “numerous” written arguments in defense of the statute.
In his petition, Pence points to the House’s intention to raise its own objections to the Gohmert case as a reason for the court to reject him.
“The Senate and the House of Representatives would be the best placed to defend the law. In fact, as a matter of logic, it is these bodies against which the protection requested by the plaintiffs must compete, ”says the Pence case.
The Justice Department’s submission also argues that the prosecution against Pence is inappropriate for another reason: the Constitution grants broad legal immunity to lawmakers. DOJ’s lawyers say comprehensive protection extends to Pence’s acts performed in an official capacity as president of the Senate.
U.S. District Court Judge Jeremy Kernolde, appointed by Trump who is in Tyler, Texas, did not schedule a hearing on the case.