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Jack Smith should win any executive privilege fight over Pence subpoena

Pence and Trump could try to block the former vice president from complying with the special counsel’s Jan. 6 investigation. Any such attempt should fail.


The news that special counsel Jack Smith has subpoenaed Mike Pence raises the question: How will Team Trump use the courts to muck up this latest development in the Justice Department’s probe?

The short answer is that any attempt to scuttle the Pence subpoena on executive privilege grounds should fail.

First off, there’s a threshold question of whether a former president can even claim the privilege. Recall that Trump tried and failed to block the House Jan. 6 committee from getting White House records. The Supreme Court declined to take up Trump’s appeal last year, with only Justice Clarence Thomas (husband of 2020 election denier Ginni Thomas) dissenting. But the court left open the question of whether an ex-president can claim privilege, with Justice Brett Kavanaugh suggesting he’d support such a claim.

So it’s at least unclear whether a former president can claim the privilege, saying nothing of whether the claim would succeed. Plus, the Supreme Court appeal over then-President Richard Nixon’s attempt to avoid subpoena compliance shows that a vague privilege assertion won’t do, and can be overcome by a specific need for evidence. The court observed in 1974’s United States v. Nixon

... when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

Therefore, precedent is on the government’s side. Of course, however, delays from litigating even a losing issue can be a victory of sorts for Trump.

But further dampening the odds of a successful privilege claim is the previous rejection of Trump’s attempt to block Jan. 6 grand jury testimony. As The Washington Post reported in October, that rejection noted that former Pence aide Marc Short, for example, “probably possessed information important to the Justice Department’s criminal investigation of the Jan. 6, 2021, attack on the Capitol that was not available from other sources.” That Pence, too, likely has unique information would help the DOJ in any subpoena fight.

And the reason we think Pence has such information is yet another reason that a privilege claim should fail. That’s because Pence has chosen to write publicly about at least some of his supposed conversations with Trump in connection with Jan. 6. It’s hard to say communications are privileged when you’ve previously deemed them fit to publicize.

So while the subpoena might present varying political and personal calculations for Pence — who may vie for the 2024 Republican nomination against Trump, someone who effectively condoned calls for Pence’s extrajudicial execution on Jan. 6 — the courts should have an easy time siding with DOJ on privilege.