Report: The Special Counsel Isn’t Going to Let Mike Pence Weasel Out of Testifying About 1/6

In the immediate wake of the January 6, 2021, attack on the Capitol, a narrative emerged that Mike Pence was a national hero for refusing to do Donald Trump’s bidding and block the certification of Joe Biden’s Electoral College win. Of course, as we later learned, a more precise description of the then VP would have been “guy who did the bare minimum and actually tried very hard to find a way to prevent Biden from becoming president out of slavish loyalty to Trump.” Thanks to reporting in Bob Woodward and Robert Costa’s book, Peril, we know that Pence, in his own words, told Trump that he did “everything” he could to try and stop the certification of the 2020 election, and pleaded with former vice president Dan Quayle to help him figure out if there was any way to do so, telling Quayle: “You don’t know the position I’m in.” And two years after the fact? Pence is still doing Trump’s bidding.

On Thursday, CBS News reported that Special Counsel Jack Smith asked a federal judge to force Pence to comply with a grand jury subpoena to testify regarding Trump’s attempt to overturn the election and the insurrection that followed. If you were still laboring under the impression that Pence did the right thing on January 6 from the get-go, you might think he’d have no problem complying with the request. But of course, he did not do the right thing, and has indicated he’ll fight the subpoena, just like he did when the January 6 committee attempted to get him to testify. Only this time, the former vice president has made the absurd argument that, because he was acting in his capacity as the president of the Senate while presiding over the vote count, he was essentially a legislator and is therefore not required to testify thanks to constitutional protections afforded to the legislative branch.

“On the day of January 6, I was acting as president of the Senate, presiding over a joint session described in the Constitution itself. So, I believe that that Speech and Debate clause of the Constitution actually prohibits the executive branch from compelling me to appear in a court, as the Constitution says, or in any other place,” Pence told reporters last week. “We’ll stand on that principle and we’ll take that case as far as it needs to go, if it needs be to the Supreme Court of the United States.”

Unfortunately for the former VP—who was very much not a member of Congress on January 6—not everyone is buying that argument. Jack Smith, for one, but also the guy who told him there was no legal basis for him to block Biden’s win that day. In an op-ed published on Friday, J. Michael Luttig—a former federal appeals court judge who has both the distinction of being a longtime conservative and the person whose counsel Pence listened to concerning certifying the 2020 results—wrote:

If Mr. Pence’s lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this “Hail Mary” claim, and Mr. Pence doesn’t have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.

And also:

Whatever the courts may or may not find the scope of any protection to be, they will unquestionably hold that Mr. Pence is nonetheless required to testify in response to Mr. Smith’s subpoena.

And our favorite part:

Mr. Pence’s lawyers would be well advised to have Jack Smith’s phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pence’s lawyers may be thinking. No prosecutor, least of all Mr. Smith, will abide this political gambit for long.… The only question now is not whether he will have to testify before the grand jury, but how soon. The special counsel is in the driver’s seat, and the timing of Mr. Pence’s appearance before the grand jury is largely in his hands. Mr. Smith will bide his time for only so long.

Maybe something for the former VP to consider.