The Week Ahead
February 12, 2023
This week, we’ll be building a new chicken coop. I’m beyond excited.
Also this week, the former president’s attorneys are expected to begin their fight to prevent Mike Pence from complying with the special counsel’s subpoena summoning Pence to testify before the grand jury about January 6 and events leading up to it, on executive privilege grounds. They will not succeed.
Executive privilege permits the president to keep communications made in support of official presidential decision-making confidential. The privilege preserves confidentiality insofar as it’s necessary for the effective functioning of the presidency. It can be used to push back against subpoenas or other oversight from the legislative or judicial branches. Traditionally, the White House Counsel’s office has used it aggressively to protect this prerogative of the presidency and ensure that current and future presidents can operate in a sphere of confidentiality that permits close advisors to give them candid advice. So let me underline, the privilege applies only when the president is engaged in running the country, not when he’s conniving to hang onto power after losing an election. And even when properly invoked, the privilege isn’t absolute.
The not-absolute part means it can be set aside in certain situations. This is particularly true when prosecutors seek testimony in a criminal investigation. In U.S. v. Nixon, the Supreme Court held that executive privilege did not excuse President Nixon from turning over tapes made in the Oval Office that the special prosecutor Archibald Cox subpoenaed. The Court gave preference to “the fundamental demands of due process of law in the fair administration of justice” over executive privilege in that case. There is no reason to believe the privilege would be interpreted differently here—in fact, since the law is settled, D.C. courts could rule swiftly and there is no reason for the Supreme Court to hear the case.
And addition reason Trump loses here is that while he may retain some residual executive privilege, the privilege belongs to the current incumbent of the White House. So President Biden makes the decisions about whether to apply executive privilege here. In October 2021, Biden declined to assert executive privilege to prevent Congress from obtaining an initial set of Trump’s records. He permitted additional tranches of documents to be sent from the National Archives to the January 6 committee. Biden permitted disclosure, the White House said, because of the gravity of the events around the January 6 attack. There is no indication he would decide differently here.
Trump’s strategy, when justice draws close, is to use the courts to delay the inevitable, hoping he can stave it off. He’s been successful for decades. But the courts seem to be catching on, increasingly declining to delay trials and showing a willingness to sanction him and his lawyers for this type of tactic.
The smart money says he will be unsuccessful here. Executive privilege won’t be enough to keep Mike Pence from testifying. The courts may have even already made, in essence, that ruling. Matters concerning grand juries are conducted in secret. That includes litigation over executive or other privileges, which is conducted under seal, so we do not know for certain what has already taken place and, if there has been any litigation, what its outcome was. But we do know that Pence’s chief of staff and legal counsel have already testified, as have other former White House advisors. This suggests that at least some executive privilege issues have already been resolved against Trump.
The clock is ticking on Mike Pence’s appearance before the grand jury.
Complying with a federal grand jury subpoena, unlike a congressional one, is not optional. DOJ has far superior mechanisms for enforcing its subpoenas. Pence will be in contempt if he doesn’t show up on the assigned date, unless a court okays it in advance. While prosecutors will likely work with his lawyers to find a convenient date and perhaps even to narrow the scope of testimony to ensure nothing touches on the legitimate scope of executive-branch function, prosecutors are entitled to Pence’s testimony about, among other things, Trump’s efforts to recruit him to help prevent the certification of the Electoral College vote. They will get it.
Pence has given interviews and written a book about the end of the Trump administration. But so far, he’s only revealed the information that he wanted to. Prosecutors will want to know about everything else, including the details of all of his interactions with Trump that connect to the outcome of the election and what followed. And why wouldn’t Pence testify, unless he believes there are details that would taint Trump and, by implication, his political future if he revealed them? Pence ducked testimony before the January 6 committee with the ridiculous assertion that it was enough to “let” his advisors testify.
If a CEO tried to send over his assistant to testify before a grand jury after the CEO observed a bank robbery in progress, there’s no way the assistant would be accepted as a substitute witness. That would be true even if they saw part of the crime, but not the entire course of conduct the CEO observed. And if the criminals had tried to enlist the CEO to join their conspiracy to rob the bank beforehand, but the CEO declined, there would be no question they were an essential witness. That’s Mike Pence. Trump tried to convince him to join his conspiracy to obstruct certification of the 2020 election. Pence needs to answer the questions prosecutors want answered, not just the ones that helped him sell his book.
Prosecutors can’t make a decision about indictments until they speak to Pence. He may help their case or he may help Trump. Either way, they need to know. But only Pence can testify to the full details of Trump’s call to him on the morning of January 6. Prosecutors will want to pursue every conversation, every interaction, that could reveal Trump’s state of mind as to the outcome of the election and whether he believed his public claims of fraud. Pence may have details of what Trump knew about the crowd on the 6th, who was in it, and why Trump wanted to lead them to the Capitol, even though the Secret Service ultimately prevented it. Lots of questions for Mike Pence.
In a December interview, Pence characterized Trump’s conduct as reckless but not criminal. That call isn’t up to him. Prosecutors are entitled to proceed with an indictment if they believe there is sufficient evidence to support charges. Ultimately, the decision about guilt is up to a jury. Witnesses to a possible crime, even when they are a former vice president, are obliged to testify if prosecutors request it.
While there are reasons to appreciate how the former vice president conducted himself on January 6, he’s no hero. Pence seems to have made a political calculation about how testifying will impact his political future, not a principled one about the fate of the country. There’s no explanation other than expediency for his unwillingness to tell the people he took an oath to serve the truth about the former president. It will apparently have to be extracted from him pursuant to a subpoena and following a court battle. But the moment when Mike Pence will have to take an oath to tell the truth is coming.
We’re in this together,