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Following special counsel subpoena, Pence has a decision to make

Mike Pence is one of the most important witnesses to one of the most important scandals in American history. But will he comply with a federal subpoena?


When it comes to investigating the Jan. 6 attack and Donald Trump’s crusade to stay in power despite his 2020 defeat, few have a perspective more important than former Vice President Mike Pence. Not only was the Indiana Republican hunted by the former president’s radicalized followers, but Pence was also directly pressured by Trump to participate in an illegal scheme to overturn the results of a free and fair election.

The former vice president, in other words, is one of the most important witnesses about one of the most important scandals in American history.

The question is how much he’s willing to share about these experiences.

Last summer, Pence initially indicated that he was open to the possibility of testifying before the House’s bipartisan Jan. 6 committee, but he ultimately reversed course, concluding that congressional investigators had “no right” to his testimony. It was, as we discussed at the time, a deeply flawed response.

There is, however, a qualitative difference between balking at a House committee’s invitation and responding to a subpoena from a special counsel’s office. NBC News reported:

Former Vice President Mike Pence has been subpoenaed by the special counsel investigating former President Donald Trump’s effort to stay in office after the 2020 election and his role in the Jan. 6 attack on the Capitol, according to a source familiar with the matter. ... ABC News first reported that Pence has been subpoenaed.

In case this isn’t obvious, Special Counsel Jack Smith, appointed by Attorney General Merrick Garland in November, is overseeing the criminal probes into Trump’s anti-election scheme and the former president’s mishandling of classified materials. The Pence subpoena is about the former, not the latter.

What’s more, it’s also worth emphasizing that there’s nothing to suggest the Justice Department wants to question Pence as a possible target of an investigation. The opposite is true: The former vice president is a witness to alleged wrongdoing, not the suspected culprit.

So what happens now? A Washington Post report added, “It is unclear whether Pence will comply with the subpoena. His advisers had previously said he was not interested in appearing before the congressional committee investigating the Jan. 6 attack on the Capitol. Pence has told people privately that he has concerns about testifying against Trump because of executive privilege, according to the person familiar with the matter.”

To be sure, it seems very likely that Trump will try to invoke executive privilege, in large part because the former president has reason to be terrified of what Pence might tell prosecutors. That said, Trump’s earlier executive privilege claims haven’t gone especially well.

As we discussed in November, Pence has been willing to share his thoughts on the matter in public appearances, in media interviews, in published op-eds, and even in his book. Offering his perspective to federal law enforcement seems like the next obvious step — and thumbing his nose at a federal prosecutor’s subpoena would be an unnecessarily provocative move given the circumstances.