On Feb. 9, Special Counsel Jack Smith subpoenaed Mike Pence to testify before a grand jury in connection with a broad investigation into Donald Trump’s false claims about the 2020 election and their connection to the Jan. 6 insurgency. As Kerry Eleveld reported at the time, Pence was not just the “primary target of Trump’s pressure campaign leading up to the Jan. 6 attack,” but was also among the people most informed about Trump’s state of mind and intentions in the days following the election.
However, five days after the subpoena was announced, Laura Clawson reported on how Pence was doing what seems to be standard procedure for any Republican in any situation: refusing to cooperate. Prior court rulings had diminished the ability of those around Trump to hide under the heavily used umbrella of “executive privilege,” so Pence declared he was taking a new tack. He would challenge the subpoena on the grounds that his former role as president of the Senate made him immune to questioning under the Constitution’s “speech or debate” clause. Which has, at least, the merit of being a novel contention. Wrong, and also wrong-headed. But novel.
Now the special counsel’s office at the Justice Department is pushing Pence into testifying before the grand jury and seeking to cut off his attempts to challenge the subpoena. They’ve placed the whole matter before the Federal District Court in Washington as a kind of pre-emptive strike. However, no matter how this move turns out, there’s little doubt that Pence will attempt to drag his feet until he can mumble something about being a 2024 candidate. Only this time, delaying tactics seem a lot less likely to work.
As The New York Times reports, this motion is being filed even before Pence gets his swing-for-the-fences challenge in front of the courts. The “speech and debate” clause is in the Constitution specifically to protect the role of Congress from an overreach by the executive branch. However, as a former member of the executive, Pence is now seeking to use his part-time role in the Senate as a means of hiding on the other side of that line.
How claiming to be an ersatz senator is supposed to free Pence from testifying is a bit of legal legerdemain that will probably remain unclear until Pence actually drops that challenge in front of a judge. But the special counsel’s motion ignores whatever argument that Pence intends to marshal on that front. Instead, it concentrates on clarifying rulings that executive privilege can’t be used to prevent Pence from testifying in an investigation that is specifically about potential crimes committed by the executive.
The “crime fraud exception” is a hole in executive privilege designed for exactly this kind of situation. Or actually, for much milder situations, because the authors never actually contemplated something of this severity. But it still serves. Or it might, if it ever gets a chance.
Over the last five years, Republicans have learned several big lessons from Donald Trump. They’ve realized that their supporters love it when they “say the quiet stuff out loud” when it comes to racism, misogyny, and attacks on every letter of LGBTQ+ Americans. They’ve learned that no conspiracy theory is too ridiculous to be accepted by the most rapid subset of their followers. They’ve learned you can literally sit on a golden throne, sucking on a silver spoon, and still get away with calling people who fought for everything they ever earned “elitists.”
But the most effective lesson Trump may have taught Republicans is simply this: The Justice System is a joke, and no one who is rich and powerful should ever fear it. Of all the skills Trump brought to Washington, the biggest was his experience in 3,500 lawsuits. He understood very well the one ability he has honed more than anyone else: The Art of the Stall.
Whether it was protecting his tax returns, dealing with the documents he carted off to Mar-a-Lago, or any threat of someone being forced to testify, Trump made the same moves: appeal, then appeal the ruling on the appeal, then appeal some more, and when that fails, find new grounds for appeal. While you’re at it, find a politically friendly judge, start a competing set of motions, and make sure the whole thing becomes such a stew of claims and counterclaims that even the prosecutor in charge isn’t certain what’s going on. If anything gets close to conclusion, start a new series of appeals. Because there are always more grounds for appeal.
Through these methods, Trump managed to drag efforts to obtain some information out so long that the quest to obtain it was finally retired. Or, as in the case of his taxes, the information only arrived just as Republicans were moving into the House so they could both ignore the crimes the documents made clear and begin an investigation of those who asked for the documents in the first place. If there are documents that were finally produced or people who finally testified, it wasn’t because the Art of the Stall was exhausted. It was just because Trump thought he’d delayed things enough that they no longer mattered.
However, the evidence so far is that if anyone in Washington, D.C., holds the right blade to cut through Trump’s method of tying the court into Gordian knots, it’s Jack Smith.
Former Pence Chief of Staff Marc Short and assistant Greg Jacob both tried to squeeze out of testimony using claims of both executive privilege and attorney-client privilege. But after the DOJ filed a still-sealed motion to the court, both men were compelled to testify.
White House attorneys Pat Cipollone and Patrick Philbin also tried to play a pair of privilege cards. They also testified before the grand jury, although their testimony may have been limited in part.
Team Trump is still attempting to pull the same stunt in another case involving attorney M. Evan Corcoran, who was involved in Trump’s purposeful holding of classified documents at Mar-a-Lago. That one is still to be settled, but whatever Smith has been putting into his sealed motions, it’s been pretty potent to date.
That sealed motion from Smith is now sitting on the federal judge’s desk in advance of any real claim from Pence.
Mike Pence may still be counting on delaying his testimony until he can hide behind some “too close to the election” rule at DOJ, then hope that some Republican candidate will rid him of this troublesome special counsel. But this time around, that seems a poor bet.
Still, Pence has to pretend, at least, to follow the Art of the Stall. A Republican cooperating with a criminal investigation? It’s simply not done. He can’t let his “law and order” supporters down.
Yes, electing the president by popular vote is possible! Joining us on this week's episode of The Downballot is former Vermont legislator Christopher Pearson, an official with National Popular Vote, the organization advocating for states to adopt a compact that would award their electoral votes to the presidential candidate who gets the most votes nationwide. Pearson walks us through the mechanics of the compact, debunks some common misconceptions, and lays out future steps toward hitting the required 270 electoral votes for the agreement to come into force.