Subpoena for former VP Pence's testimony long overdue
Any privilege claim would be sub-frivolous justifying sanctions
At long last.
Special Counsel Jack Smith has subpoenaed former Vice President Mike Pence to testify about conversations with former President Donald Trump in which the latter resorted to epithets and vulgarities hoping to convince Mr. Pence to refuse to count state-certified electoral votes in the 2020 presidential election in violation of the Twelfth Amendment and the Electoral Count Act.
The subpoena should have been issued more than one year ago by the Department of Justice and a companion subpoena should have then been issued by the House Select Committee on the January 6th Attack on the Capitol. The Department’s delay and the Select Committee’s nonfeasance remain baffling.
Among other things, in a January 6, 2021, morning phone call between Trump and Pence, Trump used “the P-word” to denigrate Pence for refusing to flout the Constitution and laws according to Trump’s daughter Ivanka, as related to her chief of staff Julie Redford. Trump also used the pejorative “wimp” to attack Pence, testified former assistant to President Trump Nicolas Luna.
Pence’s testimony is pivotal to proving whether President Trump intended to incite his “Stop the Steal” mob to thwart the Vice President’s constitutional obligation to count state-certified electoral votes by force, violence, intimidation or otherwise in violation of 18 U.S.C. 2383. It provides: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Federal district judge David Carter has already declared in a companion proceeding: “Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021, [to count state-certified electoral votes'].”
Pence’s testimony is as critical to proving Trump incited insurrection as former White House counsel John Dean’s testimony and White House tapes were to demonstrating President Richard Nixon’s complicity in the Watergate cover-up scandal that forced his resignation. It is no witch hunt or fishing expedition no matter how many times Mr. Trump screams to the contrary. An infinite number of zeros is still zero.
Pence has insinuated that he might balk at the subpoena because of executive privilege. There is not a crumb of legal authority to support such a preposterous claim.
First, the putative privilege belongs to the former President, not to Pence, and Mr. Trump has not instructed Pence to defy the subpoena based on executive privilege.
Second, even if Trump did, the claim is sub-frivolous. The United Stages Supreme Court held in United States v. Nixon (1974) that executive privilege must bow to the needs of criminal justice if the two conflict.
Third, at least the January 6 morning Trump-Pence phone call was not confidential. It was overheard in important respects by Ivanka Trump and Nicolas Luna.
Fourth, Pence has waived any putative privilege in characterizing the substance of his conversations with Trump to NBC as non-criminal in his view: “Well, I don’t know if it is criminal to listen to bad advice from lawyers. The truth is that what the president was repeating is what he was hearing from that gaggle of attorneys around him. Presidents, just like all of us that have served in public life, you have to rely on your team, you have to rely on the credibility of the people around you.” It is black letter law that voluntary testimony about conversations constitutes a waiver of any privilege of confidentiality to prevent the privilege holder from a biased editing of the whole.
Fifth, Pence’s statement that Trump’s browbeating him to refuse to count state-certified electoral votes was based on bad legal advice stretches credibility beyond the breaking point. None of Trump’s closest legal advisors stated Pence was endowed with legal authority to refuse to count state-certified electoral votes. Not the White House Counsel. Not the Attorney General. Not even Trump’s poodle John Eastman, who opined the argument would lose 9-0 in the Supreme Court notwithstanding three Trump appointees.
Sixth, former President Richard Nixon testified about Watergate after resignation for 7-8 hours before a federal grand jury. Why should Trump or his communicants be treated differently in investigating his complicity in a the far more serious crime of insurrection against the United States to prevent the peaceful transfer of presidential power for the first time in over two centuries?
The Supreme Court underscored in Branzburg v. Hayes (1972) that the public has a presumptive right to every man’s evidence. Mr. Pence should comply with the Smith subpoena with alacrity, and even disclose to the public what he says to the federal grand jury. (A grand jury witness is not bound to secrecy).
Transparency is the coin of the realm.