Subject: Re: To Be clear
It's January 7, Mike Pence is dead, the insurrectionists are barricaded in the capitol. Trump wakes up at the Whitehouse, has a nice breakfast, then he..... <fill in the roadmap that leads to Trump becoming a dictator>
Here's the roadmap:
1) With Pence dead, there is no person holding the office of President of the Senate. Under the 12th Amendment, the President of the Senate is necessary in order to finalize the results of the Electoral College vote. Therefore, the 2020 election is not - and cannot be - final until a new VP is filled. Even if that role is ministerial or ceremonial, it still has to happen.
2) Under the 25th Amendment, a vacancy in the Vice Presidency is filled by nomination by the President, confirmed by both chambers of Congress.
3) Trump either declines to nominate a replacement VP, or nominates someone who adheres to the view that the VP can decline to certify EC slates from states (like, say, John Eastman). In the latter case, the nominee would not get confirmed by the House, so there would continue to be a vacancy.
4) Trump declares that until the results of the 2020 election are certified, there isn't a valid successor. So he will continue in the role until such time as the mess is resolved.
5) SCOTUS sides with Trump. Unlike the rather weak arguments in the Eastman memo, there's a much stronger case here. While the 12th Amendment doesn't give any discretion to the VP to choose which states he's going to certify, there's nothing in the text that makes his certification of the EC results optional. Under the text, his role is ministerial, but mandatory. SCOTUS can't order the President to nominate someone, and they can't order the Congress to confirm who he nominates - so there's nothing the Court can do.
So - Trump continues to insist he's President until the election is certified, the election never gets certified, and then....what happens? Who is the President on January 21, 2021? At that point, the unsatisfactory - but probably correct - answer is that the President on that day is the person that the military is willing to take orders from. And while that might possibly be Biden, and not Trump, that's certainly not a democratic process any more. The winner wouldn't at that point be decided by the vote that was taken on Election Day, but by exercise of power by the military. And if they back Trump, Biden isn't going to be able to take office - defeating the results of the election.
(Note - you end up in kind of the same place if Pence survives but is frightened enough to cave to the Eastman process. But there's just a better chance that SCOTUS might actually do something at that point).