An Exclusive Interview with Howard Kleinhendler
The next twist in the unlike-any-other-presidential-election came Monday, when a lawsuit by a Texas congressman was filed seeking to force Vice President Mike Pence to recognize an alternative slate of electors when he certifies the Electoral College vote next week Wednesday.
Rep. Louie Gohmert and others say that the 306 to 232 result in Joe Biden’s favor is actually a 305 to 233 vote for President Trump. The lawsuit seeks to force Pence to recognize Trump’s slate that adds 73 votes to his column, or at the very least not recognize anyone and allow the House of Representatives to vote, where Trump is favored to win.
Howard Kleinhendler, one of the attorneys who filed on Gohmert’s behalf, explained in an interview with Yated how it would work. The Beis Medrash Govoah alumnus, a partner at the Manhattan-based Wachtel Missry law firm, is working with Sidney Powell’s independent “Kraken” effort to keep Trump in the White House.
There have been many legal attempts to overturn Joe Biden’s victory, but the Trump campaign didn’t win a single one of them. What makes you think that this will be the charm?
The lawsuit against Pence is not brought on behalf of Trump — it’s brought on behalf of a congressman in Texas, Louie Gohmert, and the Republican electors in Arizona. Arizona has 11 electoral votes, and all 11 have joined our lawsuit. In addition to Arizona, Republicans have selected their own slate of electors in Michigan, Wisconsin, Pennsylvania and Georgia. Altogether, we’re talking about 73 electoral votes.
In all five of those states, both parties cast Electoral College votes on December 14. The Biden slates got the certification from the governor, the secretary of state or, in Wisconsin, the election commission. The Republican electors also went to their state capitals and they did the vote as well.
On January 6, when they call out Arizona, Pence is going to be handed the two sets of electors. Here’s where our lawsuit comes in. Under the 12th Amendment to the Constitution, if there is an objection from one member of the House and one senator, then Pence gets to decide how to respond. And he has three choices. He could count the Trump electors, he could count the Biden electors, or he could say, “You know something? I’m not counting any of the electors.” And he could do that for each of these five contested states where there are two slates of electors.
Which means that at the end of all the counting, Biden does not have 271 votes. Even if he has 269 and Trump has one, that’s not enough. He needs 271. So what happens next under the 12th Amendment? The House of Representatives votes for the president. And here’s the key — this is not like voting for a law where certain states have more representatives than others. Instead, every state votes according to the size of its delegation to Congress, meaning that every state has one vote, from California with its 55 electors to Montana with its three votes.
In this vote, the entire House of Representatives has 50 shows of hand. Currently, there are 27 states that have more Republican congress people than Democrats. There are 20 states that have more Democrats than Republicans. And there are three states that are tied. So if in the delegation of states everybody votes according to party line, Trump will get 27 votes and he will be the president for the next four years.
But that’s if we win this lawsuit. Currently, there is a law passed in 1949 called the Electoral Count Act. And that law says that if Pence is handed two slates of electors and there is an objection from the House and from the Senate, then the House and Senate both convene separately. And if they don’t both vote to support the objection, then Pence must count the slate certified by the governor of the state. So, in the case of Arizona, he would have to count Biden’s slate.
What we are saying in this lawsuit is that a law cannot contradict a constitutional amendment. Ask any guy who has done one year of law school and he’ll be able to tell you that.
Has there ever been any case law on this 1949 law? Have courts ever looked at it?
It was enacted in 1949. There really hasn’t been any case law on it, because we have never had this situation before. This is a unique case, where you have so many states that have suffered fraudulent activity, and the electors from these states have voted in separate slates. It’s almost unheard of.
That’s the lawsuit we filed in Texas, and we hope it’s going to be heard very quickly.
On a practical level, will these Republican electors be allowed access to the floor of the House or Senate when Pence counts them?
They don’t have to show up — they have already sent their competing certified votes to Pence. He’s going to have two envelopes to open.
But the key is the objections. We already know that our plaintiff, Louis Gohmert, is going to object; he already said he will. All we need is one senator to object, and there are several senators who said they might. That’s it — you need just one congressman and one senator and then the whole process starts.
You haven’t had such a situation in modern history. Even in Gore v. Bush in 2000, there was one minor objection that didn’t go anywhere. So what’s happening now is unprecedented. But really, what this lawsuit is trying to do is just figuring out, before the game begins, what the correct set of rules are. Is it what the constitution says, or is what a law that was passed in 1949 says?
What we are asking for is called a declaratory judgment rule — we are asking a judge to decide which set of rules counts.
On a practical level, does Pence have the authority to decide on his own which slate of electors he pulls out of the hat, or does he have to take the slate certified by the state government?
Yes, we believe that even today, he has that authority.
The problem is, he has the authority to decide which envelope to open. But if the statute stays put, for him to disregard what the governor or state has certified, he has to conclude on his own that the law is unconstitutional, and he will not follow it. That’s why we want to make it easy for him; we want a judge to decide that in advance.
Will the judge decide so fast? Pence presides over the counting of the Electoral College votes on January 6, which is next Wednesday.
We are asking the judge to decide by Thursday, December 31. Our papers ask for a hearing on Thursday.
Which judge is this?
We’re in front of Judge Jeremy Kernodle in the Eastern District of Texas. He is a Trump appointee.
So this is just to give Mike Pence cover if he decides to count the Trump electors instead of the Biden electors.
And Pence has a right to disregard whatever the judge ultimately rules and take any slate he wants.
Well, we’re not just asking the judge to decide which rules apply. We’re also asking the judge to issue an order that Pence can’t rely on the wrong set of rules. In other words, if the 1949 electoral count act is unconstitutional, he cannot rely on that.
Now, he still can, when faced with the competing slates, say, “You know what? I am going to pick Biden.” But he can also say, “I am going to pick Trump.” Or he can say, “I am not counting either — let it go to the states.” That is what we’re trying to accomplish with this lawsuit.
All this seems far-fetched. Do you think that if this goes through flawlessly, Trump will have a mandate to be president for the next four years?
Absolutely. I don’t know why you say this is far-fetched. The rules are the rules. The Constitution is the Constitution. Either you want to follow the Constitution, or you don’t want to follow the Constitution. If you live in a country where you follow the Constitution, nothing is far-fetched.
The reason is like this. When you go to vote on November 3, you don’t actually vote for who becomes president — you vote for electors. They meet at the Electoral College on December 14, and their vote has to be certified by Congress.
The reason the founding fathers decided that the Electoral College vote has to be certified by Congress was to make sure that if something crazy happens with the states, Congress can have a check on them. This thing was thought through and purposely enacted; it didn’t just happen by accident.
And as far as Trump’s mandate, we are convinced that Trump won. If you read the four lawsuits we filed, if you read the evidence attached to the lawsuits, every single one was backed up by multiple affidavits. The judges in those cases never got to the evidence — they said we didn’t have the right to sue, or we didn’t have standing. We never had a hearing in front of a judge, with cross examination, with documents exchanged beforehand — it never happened.
All these people screaming that there is no evidence — that’s not true. We never reached a point where we would be able to show the evidence. Four judges — three of whom were Obama appointees — just shut the door. The one who wasn’t an Obama appointee gave us an initial partial temporary restraining order that Georgia had to preserve their voting machines.
Ultimately, we lost that case, but we never were able to put our evidence in a formal, what we call adversarial, setting, when we put our witnesses on, with cross examination, where we get to respond. That never happened.
What was the historical context to the 1949 electoral counting law?
It was right after the New Deal, and there were lots of government regulations being passed, and there were multiple slates sent by certain states who didn’t like all the federal regulations coming out. They didn’t have a mechanism at the time to deal with it, so they enacted this law. It’s been sitting there since, but it really hasn’t been brought to the forefront of American politics, because we’ve never had an election like this.
We’ve never had an election where you have millions and millions of people voting by mail with no signature verification, in many cases not even having to request a ballot beforehand. Computerized voting is also fairly recent, where votes are sent to central tabulators that can be manipulated. You never had all this before.
You had a perfect storm with this election. You had an enormous number of mail-in ballots that couldn’t be verified, you had a lot of computer voting. And the fact is that in five Democratic cities in these states — Milwaukee, Detroit, Philadelphia, Phoenix, and Atlanta — they were counting ballots when all of a sudden everything stopped in the early hours of November 4, at the same time in all cities. Trump went from up several hundred thousand votes to down. You want to call that some kind of crazy coincidence? We don’t find that so coincidental. And we have the expert testimony to back it up.
What happens if your plan doesn’t work out? What if the judge rejects your lawsuit, or Mike Pence decides to choose Biden’s slates?
I think if that happens, we have four cases pending before the US Supreme Court. We think the Supreme Court does have the authority, if they find that there is fraud, to set aside even what happens in Congress up until January 20. I don’t know how likely that is, especially in light of the fact that the Supreme Court doesn’t seem to want to entertain these cases — they threw out the case brought by the state of Texas, which was joined by 17 other states.
Let’s face facts. The Electoral College declared Biden the winner, v’ein acharov klum — it’s end of story.
That’s not true. Ein acharov klum is not the law. That is a fiction, it’s science fiction.
Let’s go back to 2000, when the secretary of state in Florida certified the election for Bush — certified. Al Gore didn’t take no for an answer, so he went up to the Supreme Court of Florida twice, and the Supreme Court of Florida said to keep counting, because “we have the right to overturn certification.” It was only when the US Supreme Court said “enough” — stop counting — that Bush was declared the president.
So this notion that after a state certifies the election is over is pure fiction.
My question was about the Electoral College. Don’t they have a right to vote for anybody to become president, even if that person did not win the election?
Let’s go back to December 14, when the Electoral College voted — take Georgia, for example. What happened? Sixteen guys walked into the Capitol and basically said that they are voting for Biden. Our 16 guys walked into the Capitol and did the same thing, but they voted for Trump. There was no special legislative session in place to declare any particular slate of electors the legitimate ones.
So what happened? The Electoral College does not become official until Mike Pence formally certifies it on January 6. We want him to certify our slate of electors.
Are you in touch with the Trump campaign about this lawsuit?
Have you ever done work for the Trump campaign?
No. This is part of the Sidney Powell effort. We are not working with the Trump campaign.
In your opinion, will Joe Biden be the legitimate president on January 20 if your effort fails?
Me? Howard Kleinhendler? Who cares what I think? I’m just a little guy.
Here’s what we are trying to do from a legal perspective. What’s happening in this country is upsetting. People are telling Republicans, “You are not allowed to file lawsuits.” We’ve gotten threats of sanctions because we filed a lawsuit. The cancel culture is coming to the courtroom now, which is a terrible thing.
This notion of what we’re doing over here is simple. We are exercising a right to go to court and have our claims heard. That is a fundamental right in the United States. Anybody who says you shouldn’t be going to court, or that we should kill the messenger and go after the lawyers, is upsetting the basic fundamental tenet of constitutional law and of American society. End of story.
We have the right to go to court. We may lose, but we have a right to go to court. And anybody who says that we don’t has a big problem.