Jack Smith was not going to take no for an answer. The special counsel recently subpoenaed former Vice President Mike Pence to testify in the investigation into the Jan. 6 attack and Donald Trump’s campaign to stay in power despite his defeat, and while the Indiana Republican balked, Smith and his team pressed on, insisting that Pence’s insights were absolutely necessary.
As NBC News reported, a federal judge was persuaded by the prosecutor.
A federal judge has ordered former Vice President Mike Pence to comply with a subpoena in the investigation into former President Donald Trump’s efforts to overturn the 2020 election results, according to a source familiar with the decision. The ruling from Judge James Boasberg, the chief judge of U.S. District Court for the District of Columbia, requires Pence to testify before the grand jury tied to the probe led by special counsel Jack Smith.
It wasn’t a total loss for Pence and his lawyers: Boasberg, who was first appointed to the bench by George W. Bush, said the “speech or debate” clause of the Constitution means there are some questions the former vice president won’t have to answer, but testifying about his conversations with Trump are fair game.
Part of what makes this news notable is that Pence, if this week’s order survives the appeals process, is a uniquely important witness. As we discussed last month, the Indiana Republican was not only hunted by Trump’s radicalized followers during the insurrectionist attack on the Capitol, but Pence was also pressured by the former president to participate in an illegal scheme to overturn the 2020 election results.
For those investigating possible crimes surrounding the Big Lie and the insurrectionist riot, few people, if anyone, have more relevant insights than Pence. If he answers investigators’ questions and tells the truth, his sworn testimony would likely be critical to the broader case.
But also notable is how the former vice president tried to get out of testifying — and how weak his argument was in response to the federal subpoena.
“Let me first be clear: I’m going to fight the Biden DOJ subpoena for me to appear before the grand jury because I believe it’s unconstitutional and it’s unprecedented,” Pence told reporters last month. The Republican made related comments to NBC News’ Ali Vitali, saying, “The idea of subpoenaing a former vice president to testify in court against the president, with whom he served, I believe is unprecedented in American history. But as I said last week, I also think it’s unconstitutional.”
There were basically three elements to Pence’s case. Each of his points were woefully unpersuasive.
The first was his not-so-subtle reference to “the Biden DOJ subpoena.” The idea, evidently, was that he was justified ignoring a legal directive because it was somehow sent indirectly from a Democratic White House.
This is not a serious objection. There is literally nothing to suggest any connection between the Oval Office and the special counsel’s office, and legitimate federal subpoenas do not become suggestions when partisans dislike the incumbent president and his/her party.
The second claim was that the subpoena is “unprecedented in American history.” This assertion at least had the benefit of technical accuracy, though it was also entirely irrelevant. What difference does it make that Pence’s testimony would be historically unusual?
This came up quite a bit in the aftermath of the FBI executing a search warrant at Mar-a-Lago last summer, as Trump and his allies emphasized that such a move was “unprecedented.” Maybe so. But that didn’t help the suspect’s case: The truly unprecedented part of the story was a former president taking sensitive materials, refusing to give them back, and then allegedly taking steps to obstruct the retrieval process.
The same is true in this instance: Pence was subjected to unprecedented pressure to participate in an illegal scheme. The Jan. 6 attack was itself unprecedented. Would the former vice president’s testimony be historically unusual? Absolutely, but unprecedented developments are inevitable in the wake of unprecedented circumstances.
This isn’t Smith’s fault; it’s Trump’s. Former Judge J. Michael Luttig, a giant in conservative legal circles and a former advisor to Pence, wrote a recent New York Times opinion piece that addressed this point directly: “ Inasmuch as Mr. Pence’s claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country’s history where it was thought imperative for someone in a vice president’s position, or his lawyer, to conjure the argument.”
But Pence’s third point — it’s “unconstitutional” to subpoena a former vice president — was legally dubious, and according to the federal judge who heard the case, largely unpersuasive.
It’s not yet clear whether the former vice president will appeal. Despite his recent efforts, Pence told a conservative media outlet yesterday that he has “nothing to hide.” He could help prove that by cooperating with the investigation.
This post updates our recent related coverage.