Pence Subpoenaed by Trump Special Counsel

An aggressive but expected move.

Official White House Photo by Shealah Craighead

AP (“Pence subpoenaed by special counsel probing Trump“):

Former Vice President Mike Pence has been subpoenaed by the special counsel overseeing investigations into efforts by former President Donald Trump and his allies to overturn the results of the 2020 election, according to a person with direct knowledge of the event.

The subpoena to Pence as part of the investigation by special counsel Jack Smith was served in recent days, according to the person, who spoke to The Associated Press on condition of anonymity Thursday to discuss a sensitive issue.

The extraordinary scenario of a former vice president potentially testifying against his former boss in a criminal investigation comes as Pence considers launching a 2024 Republican presidential bid against Trump. The two have been estranged since a mob of Trump’s supporters stormed the U.S. Capitol building on Jan. 6, 2021, in an attempt to stop Democrat Joe Biden’s victory.

The subpoena is an aggressive step from a prosecutor who for years led the Justice Department’s public corruption section and who oversaw indictments against major political figures. The move sets the stage for a likely executive privilege fight, given Pence’s close proximity to Trump for four years as major decisions were being contemplated and planned. It is unclear whether efforts to secure voluntary testimony from Pence stalled before the subpoena was issued.

WSJ (“Mike Pence Subpoenaed by Special Counsel Jack Smith“) adds:

Mr. Pence declined to speak to the congressional committee investigating the Jan. 6, 2021, assault on the U.S. Capitol by Mr. Trump’s supporters. But the former vice president has viewed the Justice Department investigation as different from the House inquiry, which he considered partisan, according to people familiar with his thinking.


While Mr. Pence declined to speak with the House Jan. 6 committee, the panel’s public hearings highlighted Mr. Trump’s efforts to pressure his vice president to prevent the certification of President Biden’s victory. Ahead of Jan. 6, 2021, Mr. Trump pushed for Mr. Pence to break from the vice president’s ceremonial role over the certification of the Electoral College vote and embrace a legal theory, advanced by conservative lawyer John Eastman, that he could unilaterally reject votes from certain states or suspend vote counting to turn the matter back to the states.

One of the committee’s public hearings featured testimony from J. Michael Luttig, a former federal judge and conservative lawyer who advised Mr. Pence in the run-up to Jan. 6, 2021.

“There was no basis in the Constitution or laws of the United States at all for the theory espoused by Mr. Eastman, at all. None,” he testified, calling the attempt “constitutional mischief.”

During a speech on Jan. 6, 2021, Mr. Trump pointed to Mr. Pence as a pivotal figure in his hopes of remaining in office. In the same speech, Mr. Trump told his supporters, “We fight like hell.”

“I hope Mike is going to do the right thing. I hope so. I hope so,” Mr. Trump said. “Because if Mike Pence does the right thing, we win the election.”

Later that day, as Mr. Trump’s supporters marched on and stormed the Capitol, some chanted, “Hang Mike Pence.”

In an interview last year with ABC News, Mr. Pence said Mr. Trump “endangered me and my family and everyone at the Capitol building,” where he was joined by his wife and daughter on Jan. 6, 2021. Mr. Pence has also addressed the Capitol attack in his memoir, “So Help Me God,” in which he recounted his outrage at a pro-Trump mob that “desecrated the seat of our democracy and dishonored the patriotism of millions of our supporters.”

NYT (“Pence Gets Subpoena From Special Counsel in Jan. 6 Investigation“) adds:

Mr. Pence’s team held discussions with the Justice Department about a voluntary interview, according to the person familiar with the matter, but those talks were at an impasse, leading Mr. Smith to seek the subpoena.

It’s not obvious what we’d learn from Pence that we don’t already know, given that he’s already been rather forthcoming about Trump’s attempts to get him to use his ceremonial role of presiding over the count to reject Electoral votes for Biden. But it makes sense to get that testimony under oath.

The executive privilege claims should not prove much of an obstacle. First, it’s rather well established that it resides with the sitting President. A former President can certainly assert it and, to the extent the incumbent believes it serves the future good of the office to protect the claim, he can extend it. But Biden would certainly waive it in this case, as he has in previous instances regarding the matter. Second, privilege generally doesn’t cover criminal conspiracies such as the one under investigation.

FILED UNDER: Law and the Courts, The Presidency, US Politics, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. MarkedMan says:

    The executive privilege claims should not prove much of an obstacle.

    The Republican Supreme Court may eventually rule as you describe, but they have shown that they will enthusiastically use their power to help their party with delay tactics. I expect that no matter how obvious it is that he has no right to EP, the Supremes will take it up and attempt to draw it out as long as possible.

  2. gVOR08 says:

    As I’ve seen in commentary elsewhere, how is it aggressive to ask one of the primary players to put on the record under oath events which he has written and spoken about? Surely Smith would be remiss to do otherwise.

    IANAL so a question for the group. Had Pence done as Trump demanded and refused to count certifies votes from the states, what criminal charge would apply? Or is this another case where there is no applicable statute? Plus the usual (rhetorical) question in our legal system, how can it take two years to get to this point?

  3. Kathy says:


    It’s impossible to claim “no one is above the law,” when all too many people are treated as if they were.

  4. Stormy Dragon says:

    The extraordinary scenario of a former vice president potentially testifying against his former boss

    While I realize political realities tie the vice president to the president whose administration they serve along side, the vice president is independently elected and the president has no power to remove them, so it seems weird to describe the president as the vice president’s “boss”.

  5. daryl and his brother darryl says:

    The executive privilege claims should not prove much of an obstacle.

    Well, yeah…because he essentially waived his right when he published a book on the subject. FFS

  6. Sleeping Dog says:

    While Pence has provided the broad outline of what TFG wanted from him, the details, who said what, how was the message conveyed etc, will be of value in any prosecutions that come out of the special counsel’s investigation.

  7. CSK says:

    My initial reaction to this was “Good God.”

    My second thought was “How many people will name the rat or roach Trump?

    ETA: Dammit, I meant to put this in the Open Forum. On the other hand, what the hell…

  8. Kylopod says:

    There was an old lawyer who subpoenaed a fly.
    I don’t know why he subpoenaed a fly.
    Perhaps he’s high.

  9. gVOR08 says:

    @Stormy Dragon: One of the recurring, and real world, bits in The West Wing was that VP Bob Russell was not very responsive to or supportive of the president. I guess Nixon was sorta the boss of Agnew to the extent he fired him. But it was really DoJ and technically he resigned, because he couldn’t be fired short of impeachment and removal by congress. And subsequently, that became true of Nixon himself.

  10. daryl and his brother darryl says:

    IANAL, but…it seems to me you do not subpoena a former VP unless you are serious about indicting the FPOTUS. Why suffer the fallout? Jack Smith, from what I have read, doesn’t seem like the kind of guy to undertake a pointless exercise.

  11. Kylopod says:

    @Stormy Dragon: @gVOR08: Even though a president can’t remove a vp, the president can effectively shut the vp out of power, as their only formal power is tie-breaker in the Senate, and pinch-hitter if the president dies or is removed. I imagine that’s what would happen under a scenario where we end up with a president and vp from opposite parties. (I’m not talking about a unity ticket, but an electoral college deadlock under a divided Congress. That would probably have been the result in 2012 if there’d been 269-269 tie in the EC–Romney (who would get chosen by the Republican-controlled House delegations) becomes president, but Biden (chosen by the Democratic Senate) would stay on as vp.)

  12. Joe says:

    [see below]

  13. Joe says:

    IAAL and, it is common for a party from whom you seek information to ask for subpoena to remove any responsibility associated with voluntarily responding to the inquiry. “Hey, I was compelled.”

  14. Raoul says:

    I would not read much into this procedural move. There are many reasons why an investigator would issue a subpoena, from timeline restraints to create clarity on the matter. I can even see the VP counsel suggesting such move as a matter of cover, so one really should refrain from jumping to any conclusions.