The noose tightens on Trump
Former VP Pence required to reveal January 6th smoking guns to grand jury
Today, federal district Judge James E. Boasberg rejected the sub-frivolous privilege claims of former President Donald Trump and former Vice President Mike Pence to to block the latter from testifying before a federal grand jury investigating Trump’s complicity in the January 6th insurrection against the Capitol to prevent the peaceful transfer of presidential power in violation of the 12th Amendment and Electoral Count Act by force, violence, threats, and intimidation.
As the White House tapes proved the smoking guns against President Richard Nixon in the fabled Watergate investigation, so Mr. Pence has the smoking guns against Trump’s intent to frustrate compliance with the 12th Amendment and incite insurrection by repeatedly browbeating and cursing at Pence for refusing to violate his oath of office and sabotage the Constitution. Ivanka Trump heard Trump use the “P” word against Pence, among other things.
Trump’s executive privilege claim took frivolity to a new level. The United States Supreme Court ruled in United States v. Nixon (1974) that the confidentiality of presidential communications must bow to the needs of criminal justice. And the U.S. Court of Appeals for the District of Columbia Circuit had specifically held in Nixon v. Sirica (1973) that federal grand juries were entitled to examine presidential communications relevant to a criminal investigation. Trump and his Inspector Clouseau-like lawyers advanced an anemic privilege claim to delay the day of reckoning. Temporizing is the only arrow in their quiver.
Pence privilege theory was equally fanciful. He maintained that as Vice President, performing the Vice President’s duty under the 12th Amendment to count electoral votes, he was also acting as a “Senator or Representative” under Article I, section 6 of the Constitution. The latter may not be questioned about their legislative activities by the judicial branch. But the Constitution does not conflate the Vice President with a Representative or Senator either in the text or subtext. Indeed, they have different qualifications for office. The Vice President is President of the Senate without a vote except to brake a tie, but the Vice President is not said to be a Senator. That has been a uniform understanding for 234 years. Moreover, counting electoral votes is not a legislative function. Vice President John Adams, who was present at the creation of the Constitution, complained the vice presidency was “the most insignificant office that ever the Invention of man contrived or his Imagination conceived.” Adams’ disparagement discredited Pence’s attempt to unilaterally elevate his office to the status of a Senator.
Why Pence would make a fool of himself—even against the advice of former highly respected judge of the U.S. Court of Appeals for the Fourth Circuit, Mike Luttig—is a puzzle. Pence seems more indecisive than Hamlet. He condemns Trump for endangering himself and his family by inciting his mob on January 6th and has said history will hold Trump accountable for the January 6th attempt to overthrow the Constitution. But he also declaims against Trump’s prosecution for crimes aimed at destroying the nation. Trump continues to bewail Pence for following the Constitution and counting state-certified electoral votes on January 6. So why does Pence continue to oppose Trump’s being condemned not only by history but in courts of law with the trappings of due process? He has no hope of nibbling away at Trump’s base, which continues to hold Pence in contempt. In sum, Pence is a riddle wrapped in a mystery inside an enigma, to borrow from Winston Churchill.
I witnessed this rodeo first hand before with President Nixon and Watergate, and Trump will fare no better. The noose is tightening daily. Trump will be disqualified for the 2024 presidential election under section 3 of the 14th Amendment for engaging in insurrection against the United States after having sworn to uphold and defend the United States Constitution.