The Ultimate Witness

Former president Trump’s legal woes mount after his former vice president Mike Pence testified before a federal grand jury. Photo courtesy of ABC News

Former vice president Mike Pence testified yesterday before a federal grand jury in Washington, D.C. Because it has been two years and four months since the events of January 6, 2021, you understandably might have missed or shrugged off the moment. But it’s actually a very big deal. Yuge, in fact.

With Pence’s testimony, Special Counsel Jack Smith’s criminal investigation around the Trump White House conspiracy to overturn the 2020 election has reached a critical point. There is likely no more important witness to the alleged crime than the former vice president. And never before in our nation’s history has a vice president testified under oath against his own president, with the stakes about as high as they possibly could be. 

Because it has been so long since that fateful day, it’s worth reviewing why Mike Pence is such a critical witness to Smith’s case and the evidence Pence likely gave through his testimony. We’ll start there, and then we’ll look at the long road to getting him finally to testify.

What Jack Smith needs to prove, through Pence

Special Counsel Smith is weighing whether the evidence supports charging Trump with obstructing an official proceeding, namely the Congressional electoral count on January 6, 2021. It’s undisputed that Trump tried to get Pence to go along with a plan, laid out by lawyer John Eastman, to use “disputed” elector slates from certain battleground states as a reason to declare Trump the winner or otherwise send the question back to the states for resolution.

To get to a solid yes, meaning Smith believes he can prove this to a jury beyond a reasonable doubt, a key question will be whether Trump intended to illegally obstruct an official proceeding. 

In proving intent, under the obstruction statute, 18 U.S.C. 1512(c)(2), Smith would have to prove that Trump acted corruptly in asking Pence to do this. “Corruptly” can mean many things, but at a minimum, in lay terms, it basically means Trump knew what he was doing was wrong and illegal, but he did it or caused it to happen anyway because it would somehow benefit him.

While it might seem obvious that asking Pence to do these things was wrong and illegal, Trump’s lawyers will argue that lawyers like Eastman told him this was all okay and by the book, that there was a colorable legal argument he could make, that it was necessary to undo massive electoral fraud, and all manner of other arguments. It’s easy to imagine that those defenses could raise reasonable doubt in the mind of at least one juror.

That’s why what Pence recalls and testified about is so crucial. 

Mike Pence might have filled in the gap with his testimony

Pence has spoken about his decision not to obey Trump’s request, and he even wrote about it in his book, So Help Me God. What he has said and written about publicly, but not under oath until yesterday, already provides significant insight into Trump’s state of mind.

In his book, Pence wrote that Trump told him directly, in a New Year’s Day phone call, “You’re too honest.” Trump predicted that “hundreds of thousands are gonna hate your guts,” and “people are gonna think you’re stupid.”

Pence responded, “Mr. President, I don’t question there were irregularities and fraud. It’s just a question of who decides, and under the law that is Congress.”

With Pence under oath yesterday, prosecutors would get an opportunity to unpack these and other conversations. For example, when Trump said, “You’re too honest,” did Pence understand that going along with Trump’s plan would require him to be dishonest? That sounds awfully close to corrupt. And what did he understand Trump meant when he said so many would think he was stupid? Was it because there was an opportunity to keep Trump in the White House, but Pence would only play by the book and refused to seize that chance? Again, this goes straight to whether Trump wanted Pence to act corruptly for Trump’s benefit.

It’s important to note that these are the conversations about which Pence decided it was safe to go public in speeches and his book. There may be, and probably are, other conversations that he has not previously said out loud, but would have to state before the grand jury.

For example, Nicholas Luna, a former special assistant to Trump, testified before the January 6 Committee that Trump called Pence a “wimp” and that he “made the wrong decision four or five years ago” with him. Julie Radford, who was Ivanka Trump’s chief of staff, also testified before the January 6 Committee. She said under oath that Ivanka Trump had told her that her father had “just had an upsetting conversation with the vice president” and that Trump had called him “the P-word.” This was consistent with reporting by the New York Times from two separate sources that Trump had told Pence in a heated call, “You can either go down in history as a patriot or you can go down in history as a pussy.” 

Did Pence corroborate these witnesses, along with their recollections of these incidents of browbeating, with his own sworn testimony? Many believe that Pence would lie to protect Trump, but it’s not clear to me that he would. 

First, saying he doesn’t recall, when he in fact does, is perjury. Pence, for all his many faults, is a deeply religious man who takes his oaths seriously. It was one of the reasons, besides his own fear, that he didn’t go along with Trump’s and Eastman’s plan on January 6, 2021. He wanted to follow the law, even if it took him a long time to conclude that the law allowed for no wiggle room here.

Second, there appears to be little love lost between Pence and Trump lately. Pence is considering his own run for the presidency in 2024, so Trump is now a potential rival, not just his former boss. Pence also knows that as the mob stormed the Capitol , Trump egged them on with a tweet saying Pence “didn’t have the courage to do what should have been done to protect our Country and our Constitution.” When Trump was told the crowd was shouting, “Hang Mike Pence,” according to Mark Meadows’s top aide Cassidy Hutchinson, Trump told Mark Meadows that Pence deserved to hang. 

At a Gridiron Club dinner in D.C. in March of this year, Pence staked out his position before the audience, saying “I had no right to overturn the election and his reckless words endangered my family and everyone at the Capitol that day, and I know that history will hold Donald Trump accountable.”

But wait, couldn’t Pence just claim privilege like everyone else?

The question of whether Pence or Trump could make a valid claim of privilege to prevent his testimony has been litigated up and down the D.C. Circuit for several months, but the resolution of that was a solid “no.” 

When he was first asked by Congress to appear before the January 6 Committee under oath, Pence claimed privilege and refused to honor the subpoena. But he did send his two top aides to testify, and they provided important evidence about efforts by Trump to coerce Pence into going along with the plot.

A congressional subpoena doesn’t have much teeth, but a grand jury criminal subpoena is another matter entirely. Here, Pence again claimed privilege, but not of the executive kind. He made an interesting legal argument that his actions were privileged under the “Speech or Debate” clause of the Constitution because he was acting in his capacity as president of the Senate on January 6, 2021. The question was a novel one, and the judge split the difference, ruling that Pence could not be required to testify about his actions as Senate president on that day, but that other conversations unrelated to his official duties that day would be fair game. Pence decided not to appeal that ruling.

Trump’s lawyers, on the other hand, tried to stop Pence from appearing before the grand jury at all. They claimed executive privilege over the entirety of Pence’s conversations with Trump. But a three-judge panel of the D.C. Circuit swatted that down Wednesday night, and hours later Pence made his appearance before the grand jury under oath.

Sources say Pence’s SUV arrived at the courthouse at 9 am and didn’t leave until around 4:30 pm. That means he was there at least 7.5 hours, testifying for most of it. Pence didn’t take the Fifth, and per CBS sources, he had been preparing for the questioning for weeks, aiming to get the chronology, players, written memoranda and conversations as accurate as he could recall them.

We are now at the point in the case where the two men closest to Trump and Eastman in their plot to overturn the election—former Chief of Staff Mark Meadows and former vice president Mike Pence—have both been ordered to testify before the grand jury, and now Pence has. My lawyer senses tingle at this, because prosecutors usually leave the most important witnesses for the end of their presentation to the grand jury. 

Special Counsel Jack Smith has moved with admirable speed after taking over this matter. Admittedly, there are still other pieces of the puzzle we have less information about, including potential charges of conspiracy to defraud the U.S. and wire fraud committed to rake in millions from the Big Lie. But the parts of the case relating to the plot to overturn the election now seem solidly in place, and so we await what I believe is a likely indictment to issue on that charge.