The Speech That Saved the Nation in 1877

With the outcome of the 1876 election up in the air months after Election Day, Sen. Roscoe Conkling delivered an address that helped ward off an electoral crisis.

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Former Vice President Mike Pence intrigued many by his recent statement that he would consider appearing before the January 6 committee. The possibility of Pence’s testimony renews the importance of examining the role President Donald Trump and his attorney John Eastman envisioned for Pence in their election scheme.  

In December of 2020 and the early days of January 2021, as Donald Trump was looking for ways to invalidate the election, Eastman drafted two memos that sought to make the case that Pence could overturn the election himself by rejecting the slates of electors from seven states that had been won by Biden, giving Donald Trump enough votes to prevail in the Electoral College. 

In a normal presidential election year, the process for counting the electoral votes is straightforward: On January 6, following the election, a joint session of Congress fulfills its requirements under the 12th Amendment in the following manner: 

The President of the Senate (Vice President) shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. 

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  1. Avatar photo
    Dpatricola

    Thank you for this well-researched article. I knew the 1876 election was contentious, but not its magnitude.

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    Philbnichols

    Very helpful, thanks.

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  3. Emma

    "But the democrats!!!!....." - the GOP.

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    Aylene Wright

    Thanks for this fascinating recap. At first I wondered if there being historical precedent for people making Eastman's argument in the past, would somehow bolster it. But it actually eviscerates it.

    Roscoe Conkling has been judged by history mostly as a corrupt political boss. I don't know if this speech and I assume whatever else he did to squelch the Eastmans of his time, redeems him exactly. But it certainly shows that he had *some* lines he refused to cross.

    Now I also think the tendency to divide politicians into "principled" heroes "unprincipled" villains is overly simplistic even when it's applied to contemporary politics. Much more when we evaluate historical figures. I don't think reducing anyone to the worst thing they have done is fair. But neither is totally ignoring them or waving them off with "the norms were different back then, we can't judge them by modern morals".

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    Phil H

    That Donald Trump, by his refusal to concede the election even after all his legal challenges failed, tried to precipitate a Constitutional crisis arguably worse than the disputed 1876 election, is more than enough reason never to let him near the White House, ever again.

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    Todd T

    Eastman is a hack of the highest order. We give almost (maybe zero) no real power to the VP. Yet we should entertain the thought that this same executive-in-waiting could unilaterally decide the presidency. It’s crazy that it took two days to make that point.

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    1. Peter Adams

      Almost no real power. But not zero. The VP can break tie votes in the Senate. That's something. Seems to come up quite a lot these days...

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    Dr. Livesey

    So we have this Eastman character and the Trump Circus on one side and on the other, we have John Adams, Thomas Jefferson, Abraham Lincoln, Martin Van Buren and even Aaron Burr and Roscoe Conkling. And majorities in Congress on at least several occasions.

    Appealing to authority is not the strongest argument, but helps bolster the strong appeals to well-considered common sense and what looks like a very fair reading of the Constitution — both of which look air-tight.

    Thank-you, Jacob Becker, for clearly laying it out. So that even an idiot can understand it. Trump delenda est.

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    Charles

    It's really a shame how many hours have been lost refuting such an insane and torturous treatment of the constitution and laws. Thank you for your sacrifice.

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  9. Brian Kelley

    I read "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates ..." as forbidding him from opening the certificates until he has a room full of witnesses. He obviously wasn't trusted to count them on his own.

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  10. Joe1776

    This reasoning is very sound. Even the phrase from the constitution seems clear that the VP only opens the votes.

    I would like to hear from Pence and the crazy things Trump and his team were saying. But do not think he should legitimize the partisan January 6th committee by appearing. If he appeared there, whatever he said would be immediately lose weight with many republicans. If he did it on his own then I think many republicans would listen. Pence gained respect within the Trump camp like no other person but if he testifies for the January 6 committee all that respect will immediately vaporize.

    It seems Cruz had history to support his view that a committee to review votes should be appointed.

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