Will Pence fight a subpoena claiming executive privilege?

WASHINGTON – a call to former Vice President Mike Pence this is an important milestone in the ongoing investigation by the special counsel of the Department of Justice. But that doesn’t guarantee he’ll be testifying before a grand jury anytime soon.

Pence is the latest official in former President Donald Trump’s administration to be subpoenaed as part of an investigation into efforts to overturn the results of the 2020 presidential election. caused by

A lawsuit, the most aggressive move to date special prosecutor Jack Smithsets the stage for a potential executive privilege dispute, creating a dynamic that could test — or at least delay — the Justice Department’s ability to get the testimony it believes it needs from Pence.

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

“It’s going to be pretty easy because the Justice Department will be able to make very compelling evidence for testimony,” said W. Neil Eggleston, a former White House adviser in the Obama administration.

Spokesmen for Pence and Smith declined to comment on the subpoena, which a person familiar with the matter said followed negotiations between the two sides. A lawyer for the former vice president did not respond to emails seeking comment. Pence was represented by a veteran attorney Emmett Floodwho spent decades in Washington guiding other high-ranking political figures through controversies over executive privilege.

The interest of Pence for the investigators is obvious. Although Pence only played a ceremonial role in monitoring the election, Trump has been supporting Pence for weeks to help him stay in power, with the president falsely insisting that Pence could simply reject the results and send them back to the battlefield states he contested.

Some of the Trump supporters who stormed the U.S. Capitol on Jan. 6 as Pence presided over the vote count chanted, “Hang Mike Pence!” as the vice president was sent to safety.

Since then, Pence, who is considering running against 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​​​​this criticism, Pence refused to testify voluntarily before the House committee investigating the January 6 uprising, and he was never subpoenaed. Whether he views cooperating with a grand jury differently is unclear, as is whether he and his lawyers will try to avoid being forced to discuss private conversations with Trump.

If he does end up testifying, the subpoena could give him a measure of political cover, helping him avoid further alienating Trump supporters, which he might need for his own election, allowing him to say he was coerced into cooperating, and did not do it voluntarily.

If he doesn’t want to comply, he can seek Trump’s intervention by invoking executive privilege, a doctrine designed to protect the confidentiality of decision-making in the Oval Office. Such actions could lead to closed arguments before Chief Federal Judge Beryl Howell of the District of Columbia Circuit.

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

The Supreme Court made this clear in a 1974 decision that forced President Richard Nixon to turn over incriminating Oval Office records, saying that the use of the doctrine of “suppression of evidence clearly relevant to a criminal trial seriously violates the guarantee of due process of law and seriously violate the basic function of the court.”

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

Other Trump administration officials have already testified before a grand juryincluding former White House adviser Pat Cipollone and his top deputy, as well as 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 Jan. 6 probe and a separate investigation into the presence of classified documents at Trump’s Florida estate, according to a person familiar with the matter who spoke on condition of anonymity to discuss the action.

“It’s a little awkward that this evidence requires his vice president. But the law doesn’t usually discriminate against people in the White House,” Eggleston said.

Other potential complicating factors include the fact that the episodes about which investigators are believed to want to question Pence — such as Trump’s efforts to influence the vote count — do not involve routine presidential duties, such as those normally considered protected by executive privilege. 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. That includes a description of a pressure campaign on Trump to get Pence to reject the election results, as well as multiple conversations in the run-up to Jan. 6 in which Pence says he told Trump he didn’t believe he had the power to do what he wanted. Trump.

“I think there are arguments that Pence or Trump could make,” Farber said. “And, of course, it is impossible to predict 100% what the courts will do. But that doesn’t seem like a very strong argument.”