Why prosecutors are entitled to Mike Pence’s testimony
Last week, while on the interview circuit hawking his book, former Vice President Mike Pence had the audacity to maintain that the January 6 committee wasn’t entitled to his testimony. After all, Pence reasoned, he’d made his senior advisors available. He shook his head, made a face like he’d just eaten something Mother wouldn’t approve of, and indignantly dismissed the notion that he, Mike Pence, should have to testify under oath.
Mike Pence not only owes Congress his testimony, he owes it to the American people. Pence seemed affronted by the prospect of being required to testify. His rationale was that it would violate the separation of powers, that permitting Congress to acquire testimony about internal White House deliberations between a President and the Vice President would upset our system of checks and balances. (I’m fleshing it out a little bit more than Pence did, for the sake of argument.)
While that argument could be put forward in normal circumstances, it’s not the case here. Pence acted as though these interactions with Trump were in the normal course of conducting the nation’s business. But even without Pence’s testimony, we know enough to know that isn’t the case. Trump solicited Pence’s interference with the certification of the 2020 election and tried to lure him into the propagation of the big lie.
But we don’t know the details. Investigators don’t know and the American people don’t know. And they won’t for certain unless and until Pence testifies. Pence’s top aides weren’t involved in the same way he was. They may have observed, but Pence was the man. When did Trump start discussing the idea of interfering with certification with Pence? Did he threaten? Offer anything? And how much earlier did it start? Was Pence privy to conversations about failing to concede a loss in the summer of 2020? Fake slates of electors? Did he push back and tell Trump it would be illegal? What did Trump say? There’s a full ticker of questions investigators need to ask Pence if the full picture is going to emerge. Americans are entitled to the full picture.
While the January 6 committee may be running out of time, the Justice Department isn’t. Pence is an important witness in their January 6 investigation because of his unique, close contact with Trump. His testimony, whatever it may be, is highly likely to illuminate whether the former president should be prosecuted.
A simple example is illustrative. Imagine you’re an FBI agent investigating an attempted bank robbery. You learn that before the attempt, one of the key conspirators tried to enlist a friend to help with the scheme. The friend turned him down.
You’d want to talk to the friend. His testimony would be essential to your case.
The friend has key evidence about the would-be bank robber’s intent and motive. He may know the contours of the entire plan. That evidence could be the linchpin in your efforts to charge people who came perilously close to pulling off a dangerous robbery.
Of course, it’s even more important when the crime is an attempt to interfere with the peaceful transition of power in our country. That’s just common sense.
Unless you’re Mike Pence.
There are good reasons to make sure a president’s can protect certain types of privileged communications from disclosure via Congressional testimony. It helps to ensure a president can get the best advice from people who aren’t afraid their words will be reported and perhaps misconstrued. But that’s not the case here. This was about interfering with government, not executing its work. Executive privilege is not absolute. It can be overcome where Congress needs access to information to carry out its oversight function. Oversight is certainly necessary here.
If Pence was serious about protecting legitimate functions of the presidency, he wouldn’t have written a book and profited from his access. But he’s avoided testifying so far, simply be declining to do so. No one has tried to force the issue.
So here’s hoping DOJ sends a subpoena his way. That’s something the former Vice President can’t easily duck.
Pence has given DOJ, and now the special counsel, every reason to believe he is a fact witness in possession of important information about a possible crime that they need to make a proper assessment of the situation. As recently as last week, in an ABC televised interview, Pence discussed Trump’s conduct toward him on January 6: “The president’s words were reckless. It was clear he decided to be part of the problem.” He went on to say, Trump’s “words … endangered me and my family and everyone at the Capitol building.” If you’re investigating Trump’s actions, you’d like to know more about what’s behind these statements.
Mike Pence worked for a president who believed he was above the law. Maybe some of that rubbed off on the former six-term member of the House of Representatives. But it’s still shocking that Pence, despite his time in the House, flouted their subpoena, diminishing the constitutional authority of an institution he dedicated so many years of his life to. Pence needs to be reminded that the law applies to him too. He’s a witness to a crime and in our system of laws, not men, high office doesn’t and can’t insulate a person from their responsibility to testify about facts they observed. The sooner we get back to enforcing those basics in a serious way designed to instill confidence in the rule of law, the better off we will be. The glare Mike Pence used on the journalist who interviewed him won’t work on DOJ. The American people deserve to know the truth.
We’re in this together,
Civil Discourse with Joyce Vance is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.