The vice president had also been in Georgia stumping for the Senate candidates. On the way back, from their separate planes, they had arranged to get together in the White House that evening. Giuliani wanted to have the vice president sit down with John Eastman, the constitutional scholar he was most relying on to make the case for the vice president’s wide powers. Marc Short would have liked to avoid this meeting. He was adamant that there was no discretion on the vice president’s part; certain that, in the vice president’s mind, there was no debate or ambiguity here; and confident that they had expressed this to the president in every possible way. But trying not to say no to the president, Short agreed they’d come in for a last discussion, with the stipulation that Giuliani, who Short was convinced was wholly without sense or reason, the lead clown in the clown car, not be there.

Short and the vice president arrived with their own attorney, Greg Jacob, a Federalist Society conservative-in-good-standing lawyer who viewed the president and his lawyer’s position as insupportable and fallacious, if not ludicrous.

It was the vice president himself who led the pushback.

Eastman had two equivalencies that he now tried to argue:

Thomas Jefferson, in 1801, was both the president-elect and the sitting vice president in the certification of his own electors. Jefferson, presiding over the joint session, unilaterally accepted a Georgia elector who had been excluded on the basis of a clerical error. In other words, in Eastman’s example, Jefferson had demonstrated that a vice president had discretion.

A frustrated, resolute, and, to a degree that he would never show, increasingly angry Mike Pence made the two obvious points: Jefferson’s decision didn’t change the result of the election, and the current rules under which presidential elections were governed weren’t codified until the Twelfth Amendment was passed, three years later.

The next equivalency that Eastman offered came from 1961, when Richard Nixon presided over the certification of electors in the presidential election he had lost. Hawaii, a new state, had, in a close election and recount, produced two slates of electors, one for Kennedy and one for Nixon, which, although Kennedy was finally declared the winner in Hawaii, were both presented to Congress. Here, too, the disputed electors would not have made a difference in the election. Nixon, presiding over the session, asked for and received unanimous consent to seat the Kennedy electors—quite against his own interests.

Pence, here too, dismissed this example as woefully off point, both in its effect and procedures.