Pence Subpoena Signals Trump Special Counsel Is Preparing to Cross the Rubicon

T he New York Times reports that former vice president Mike Pence has been subpoenaed to testify before the grand jury probing former president Donald Trump’s role in the events that led to the January 6 Capitol riot. The subpoena was issued by Jack Smith, the special counsel appointed in November by Biden administration attorney general Merrick Garland.

The Times report is based on information from a “person familiar with the matter” who goes unnamed. Nevertheless, any competent prosecutor would want to lock in testimony under oath from Pence.

The criminal investigation is focused on whether Trump’s “stop the steal” campaign between Election Day on November 8, 2020, and the constitutionally mandated joint session of Congress to count state-certified electoral votes on January 6, 2021, violated federal criminal laws — among others, conspiracy to obstruct Congress and to defraud the United States.

Central to that inquiry is the dubious legal theory that, notwithstanding President Joe Biden’s victory, which was cinched when the states cast their certified electoral votes in mid December 2020, Pence had the legal authority to, in effect, countermand that result, either by invalidating the votes of the states Trump contested or by suspending Congress’s count of the votes so that those states could conduct further investigation. (This, despite the facts that the federal statutory deadline for challenging state results had passed four weeks earlier, and that the Constitution gives states supremacy over the conduct of presidential elections, with Congress and the vice president given only the ministerial task of seeing that the votes are counted.)

The legal theory was developed mainly by John Eastman, a constitutional-law scholar on whom Trump relied. Prior to the January 6 joint session of Congress, Eastman and Trump had meetings with Pence and his staff in order to pressure Pence into accepting the wayward legal theory. Eastman and Trump both spoke at the rally at the Ellipse, ratcheting up pressure on Pence. After the vice president rightly rejected the notion that he had the authority to invalidate or suspend the counting of electoral votes, Trump reprehensibly put him in physical peril by denouncing Pence in a tweet even though the Capitol was by then already under siege.

Pence is thus a direct witness to both the plan to derail Congress’s counting of the votes and the actual obstruction that occurred — delaying by several hours the completion of the vote-counting and affirmation of Biden’s victory.

The former vice president considered a request by the House January 6 Committee that he testify in its inquiry but ultimately opted to decline, citing separation-of-powers principles. Though the committee was notoriously aggressive in fighting executive-privilege claims, it did not challenge Pence’s refusal. In part, this was because Pence was on firm footing, and, in any event, his refusal came too late in the probe for the committee to litigate it. In part, it was because, with Pence’s encouragement, the committee received extensive cooperation from Marc Short and Greg Jacob, respectively the former veep’s chief of staff and counsel.

Short and Jacob were present and fully informed about the key events. They gave testimony that undoubtedly duplicates what Pence would say. There was thus no sense in the House committee’s pressing the point. By contrast, executive-privilege claims are far weaker when a current or former executive official is subpoenaed for testimony in a criminal investigation by an executive-branch prosecutor — and the special counsel is an executive official who reports to the attorney general and wields the president’s power at the president’s pleasure.

Trump could try to assert executive privilege to bar Pence’s testimony, as he has done with respect to other information demands in January 6 investigations. But this would be futile, and Pence (who is an attorney and well versed in constitutional law) is apt to make his own decision to cooperate with the investigation, regardless of what Trump says. The special counsel and the Justice Department prosecutors who ran the case before his appointment have already obtained testimony from top Trump-administration officials — including Pence’s aforementioned aides and two top Trump lawyers, White House counsel Pat Cipollone and his deputy Patrick Philbin.

Pence appears to be gearing up for a (highly unlikely to succeed) 2024 presidential bid. He has thus tried to walk a fine line: denouncing Trump’s actions in connection with January 6 but trying to stay on the right side of Trump supporters by contending that the former president has been unfairly treated by the Justice Department in the Mar-a-Lago classified-documents investigation (which is also part of Special Counsel Smith’s remit).

On that score, Pence now has his own mini-scandal regarding classified documents that were found illegally retained in his Indiana home last month — shortly after Pence ripped Biden for having retained such documents in his home. This could complicate Smith’s ability to compel Pence’s testimony. Pence could assert the Fifth Amendment privilege because of his exposure in the classified-documents matter, but that is unlikely. The chance that Pence would be prosecuted for his infraction, which seems to be dwarfed by Trump’s and Biden’s misadventures, is very remote. Smith would presumably give Pence testimonial immunity so that anything he said could not be used against him in any classified-documents prosecution. Alternatively, the special counsel could simply commit not to prosecute the former veep if he cooperates in the January 6 probe — which would give away nothing under the circumstances.

As I explained in the most recent issue of National Review, the domino effect of Biden’s classified-information scandal is that, while Trump’s indictment on the Mar-a-Lago classified documents appeared imminent just a few weeks ago, it now seems inconceivable that he could be charged when Biden will not be — and, equally salient, when Hillary Clinton got a pass. That does not change the political calculus that a Trump prosecution is the Democratic base’s most devout wish. Ergo, I’ve theorized in discussions with Rich Lowry on The McCarthy Report podcast that the Biden Justice Department, through its special counsel, would redouble the effort to make a January 6 case against Trump.

That has always been the Democrats’ principal objective — indeed, insisting that such a prosecution should be brought was the leitmotif of the House January 6 Committee. It is a hard case to make because, in essence, the Justice Department would be arguing that a frivolous legal theory at some point transmogrified into a felony fraud and obstruction. That would be a promiscuous precedent for federal prosecutors to set — frivolous legal theories are very common, and it’s always been thought that, for the sake of promoting zealous legal defense, we should be content to rebuke such theories without criminalizing them.

A subpoena for the former vice president of the United States strongly suggests that the Justice Department is poised to go down this perilous path, and that a final decision on that score is probably nearing.