Justice Department seeking to question Pence in Jan. 6 investigation
The Justice Department is seeking to question former Vice President Mike Pence as a witness in connection with its criminal investigation into former President Donald Trump’s efforts to stay in power after he lost the 2020 election, according to two people familiar with the matter.
Pence, according to people familiar with his thinking, is open to considering the request, recognizing that the Justice Department’s criminal investigation is different from the inquiry by the House Jan. 6 committee, whose overtures he has flatly rejected.
Complicating the situation is whether Trump would try to invoke executive privilege to stop him or limit his testimony, a step that he has taken with limited success so far with other former officials.
Pence was present for some of the critical moments in which Trump and his allies schemed to keep him in office and block the congressional certification of Joe Biden’s victory. An agreement for him to cooperate would be the latest remarkable twist in an investigation that is already fraught with legal and political consequences, involving a former president who is now a declared candidate to return to the White House — and whose potential rivals for the 2024 Republican nomination include Pence.
Thomas Windom, one of the lead investigators examining the efforts to overturn the election, reached out to Pence’s team in the weeks before Attorney General Merrick Garland appointed a special counsel Friday to oversee the Jan. 6 investigation and a separate inquiry into Trump’s handling of classified documents, according to one of the people familiar with the matter. Garland has said that the appointment of the special counsel, Jack Smith, will not slow the investigation.
Officials at the Justice Department declined to comment. A spokesperson for Pence also declined to comment.
The discussions about questioning Pence are said to be in their early stages. Pence has not been subpoenaed, and the process could take months, because Trump can seek to block, or slow, his testimony by trying to invoke executive privilege.
Trump has cited executive privilege to try to stop other former top officials from talking with investigators. While those efforts have generally been unsuccessful in stopping testimony by the officials to a federal grand jury, they have significantly slowed the process.
Trump’s efforts to slow or block testimony included asserting executive privilege over testimony from two of Pence’s top aides: his former chief of staff, Marc Short, and his general counsel, Greg Jacob. But both men returned for grand jury interviews after the Justice Department, in a closed-door court proceeding, fought the effort to apply executive privilege.
Pence, who rebuffed Trump’s efforts to enlist him in the plan to block certification of the Electoral College results, has been publicly critical of Trump’s conduct in the run-up to the Jan. 6 assault on the Capitol and on the day of the attack, when members of a pro-Trump mob were chanting “Hang Mike Pence.”
During an appearance in New Hampshire in August, Pence indicated he was open to appearing before the House Jan. 6 committee, which had been pushing to have him tell his story, but he offered a caveat.
“If there was an invitation to participate, I’d consider it,” Pence said at the time. But he added that he was concerned that speaking to a congressional committee would violate the doctrine of separation of powers between the executive and legislative branches. “But as I said, I don’t want to prejudge. If ever any formal invitation” came, he said, “we’d give it due consideration.”
However, in interviews for the release of his new book, “So Help Me God,” Pence has been more emphatic in his opposition to providing testimony to the House committee, asserting that “Congress has no right to my testimony” about what he witnessed.
“There’s profound separation-of-powers issues,” Pence told The New York Times in an interview. “And it would be a terrible precedent.”
But Pence, according to people familiar with his thinking, sees the Justice Department inquiry differently given that it is a criminal investigation. His testimony could be compelled by subpoena, though none has been issued.
The former vice president is being represented by Emmet Flood, a veteran Washington-based lawyer who served as the lead Trump White House lawyer dealing with the investigation by Robert Mueller, the special counsel, into possible conspiracy between the Trump campaign and Russia in 2016.
Flood is representing several other top White House officials who find themselves as witnesses in the range of congressional and Justice Department investigations into Trump, including Short.
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