Pence’s agenda could lead to a fight for executive privilege

WASHINGTON. The subpoena against former Vice President Mike Pence is a major milestone in the ongoing investigation by the Justice Department’s special counsel. But this does not guarantee that he will testify before a grand jury anytime soon.

Pence is the latest official in the administration of former President Donald Trump to be subpoenaed as part of an investigation into efforts to reverse the results of the 2020 presidential election. called.

The subpoena, the most aggressive move to date by Special Counsel Jack Smith, sets the stage for a potential dispute over executive privilege, creating a dynamic that could test — or at least delay — the DOJ’s ability to get Pence to testify . considers it necessary.

Pence’s representatives have not publicly stated whether he intends to comply with the subpoena or instead seeks to limit or avoid his grand jury appearances. Trump, for his part, did not say if he plans to claim executive privileges to prevent Pence from cooperating. But some legal experts say that if he tries to do so, he will have to face serious obstacles to success.

“It will be pretty easy because the Justice Department will be able to present evidence very convincingly,” said W. Neil Eggleston, a former White House adviser in the Obama administration.

Representatives for Pence and Smith declined to comment on the subpoena, which a person familiar with the matter said followed bilateral talks between the two sides. A lawyer for the former vice president did not respond to emails asking for comment. Pence was represented by veteran lawyer Emmett Flood, who for decades in Washington has led other senior politicians in disputes over executive privilege.

Pence’s interest in investigators is obvious. Despite playing only a ceremonial role in election observation, Trump intimidated Pence for weeks to help him stay in office, with the president falsely insisting that Pence could simply discard the results and send them back to the states. the battlefields he contested.

Some Trump supporters who stormed the US Capitol on January 6 as Pence presided over the electoral vote count chanted “Hang Mike Pence!” because the vice president was being sent to safety.

Since then, Pence, who is considering running Trump for president in 2024, has distanced himself from the former president, saying last year that “President Trump is wrong” and that “I had no right to cancel the election.”

Despite these criticisms, Pence refused to volunteer to testify before the House committee investigating the January 6 uprising, and he was never called to appear in court. It’s unclear if he views grand jury cooperation differently, or if he and his lawyers will try to avoid being forced to discuss private conversations with Trump.

In the event that he does eventually testify, the subpoena could give him a degree of political cover, helping him avoid further alienating Trump supporters he may need for his own campaign bid, allowing him to say he was forced to cooperate. and did not do it voluntarily. .

If he is unwilling to comply, he can expect Trump to intervene, citing executive privilege, a doctrine designed to protect the privacy of Oval Office decision-making. Such an action could lead to disputes behind closed doors before D.C. Chief Federal Judge Beryl Howell.

Even so, however, prospects for success are uncertain at best, in part because the privilege is not absolute, and the courts have held that it can be bypassed if the evidence sought is deemed necessary for a criminal trial or grand jury trial.

The Supreme Court made this clear in a 1974 decision that forced President Richard Nixon to hand over damning Oval Office tapes, stating that using the principle of “withholding evidence that is clearly relevant in a criminal trial seriously undermines due process guarantees.” and seriously undermines the core function of the court.”

Trump has also failed to claim executive privilege in cases where the current Biden administration disagrees. For example, the Biden White House has repeatedly rebuffed Trump’s attempts to use executive privilege to prevent the National Archives and Records Administration from providing the Jan. 6 presidential documents to a House committee. The Supreme Court in January 2022 also rejected Trump’s attempts to withhold documents.

Other Trump administration officials have already testified before the grand jury, including former White House adviser Pat Cipollone and his top deputy, and Pence’s chief of staff Mark Short.

Former Trump administration national security adviser Robert O’Brien was also subpoenaed by the special counsel as part of the January 6 investigation and a separate investigation into the existence of classified documents at Trump’s Florida estate, according to a person familiar with the matter, who insisted on anonymity when discussing the action. .

“It’s a little embarrassing that this evidence is being asked from his vice president. But the law usually doesn’t discriminate between people in the White House,” Eggleston said.

Other potential complicating factors include the fact that the episodes that investigators seem to want to question Pence about — such as Trump’s attempts to influence the vote count — do not involve ordinary presidential duties, like those normally considered protected by executive privilege. said Daniel. Farber, expert on presidential powers and Berkeley law professor.

He also detailed many of these episodes in his book So Help Me, God, published last year. 6 when Pence says he told Trump he doesn’t believe he has the power to do what Trump wants.

“I think there are arguments that Pence or Trump can make,” Farber said. “And, of course, you can never 100% predict how the courts will behave. But that doesn’t seem like a particularly strong argument.