Pence subpoena could spark fight over executive privilege

The subpoena of former Vice President Mike Pence is a landmark moment in an ongoing investigation by the Justice Department’s special counsel. But that doesn’t guarantee he’ll testify before a grand jury anytime soon.

Pence is the latest official in former President Donald Trump’s administration to be subpoenaed as part of the investigation into efforts to overturn the 2020 presidential election results, but the pressure for Pence’s testimony is unique because he is the highest ranking official. echelon known to have been drafted.

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 Justice Department’s ability to get Pence the testimony you believe you need.

Pence’s representatives have not publicly said whether he intends to comply with the subpoena or will instead seek to limit his grand jury appearance or avoid it altogether. Trump, for his part, has not said whether he plans to claim executive privilege to thwart Pence’s cooperation. But some legal experts say he will face significant obstacles to success if he tries to do so.

“This will be pretty straightforward because the Justice Department will be able to make a very convincing case for the witness,” said W. Neil Eggleston, a former White House counsel in the Obama administration.

Spokespeople for Pence and Smith declined to comment on the subpoena, which a person familiar with the matter said follows negotiations between the two sides. A lawyer for the former vice president did not return emails seeking comment. Pence was represented by veteran attorney Emmet Flood, who over decades in Washington steered other high-profile political figures through disputes over executive privilege.

Pence’s interest in investigators is obvious. Despite having only a ceremonial role in overseeing the election, Pence was intimidated by Trump for weeks into helping him stay in power, with the president falsely insisting that Pence could simply reject the results and send them back to the field states. of battle he contested.

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

Since then, Pence, who is considering launching a 2024 presidential bid against Trump, has distanced himself from the former president, saying last year that “President Trump is wrong” and that “I had no right to annul the election.”

Despite this criticism, Pence chose not to voluntarily testify before the House committee investigating the January 6 insurrection and was never subpoenaed to appear. It’s unclear whether he views cooperating with the grand jury differently, as well as whether he and his lawyers will try to avoid being forced to discuss private conversations with Trump.

Should he finally testify, a subpoena could give him a degree of political cover, helping him avoid further alienating the Trump supporters he may need for his own election campaign, allowing him to say he was compelled to cooperate in instead of doing it voluntarily. .

If he doesn’t want to comply, he can expect Trump to intervene by invoking executive privilege, a doctrine designed to protect the confidentiality of the Oval Office’s decision-making process. Such an action could result in closed-door discussions before the Chief Federal Judge of the DC District Court, Beryl Howell.

Even then, however, the prospects for success are uncertain at best, in part because the privilege is not absolute and courts consider that it can be overridden if the requested evidence is deemed necessary for a criminal trial or prosecution proceeding. grand jury.

The Supreme Court made this clear in a 1974 decision that forced President Richard Nixon to hand over the damning Oval Office recordings, saying that using the principle to “withhold evidence that is demonstrably relevant in a criminal trial would profoundly undermine the guarantee of due process.” Cool. and seriously impair the basic function of the court”.

Trump has also been unsuccessful in asserting executive privilege in cases where the current Biden administration disagrees. For example, the Biden White House has repeatedly rejected Trump’s efforts to use executive privilege to block the National Archives and Records Administration from presenting presidential records about Jan. 6 to the House committee. The Supreme Court in January 2022 also rejected Trump’s efforts to withhold the documents.

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

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

“It’s a little uncomfortable that this evidence is being asked of your vice president. But the law has generally not differentiated between people in the White House,” Eggleston said.

Other possible complicating factors include the fact that the episodes investigators presumably want to question Pence about — such as Trump’s efforts to influence vote counts — do not pertain to conventional presidential duties such as those typically thought to be protected by privilege. executive, said Daniel Farber, an expert on presidential powers and a Berkeley law professor.

He also wrote in detail about many of these episodes in a book published last year, “So Help Me God”. 6, when Pence says he told Trump he didn’t believe he had the power to do what Trump wanted.

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

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