The New York Times today breaks that the Department of Justice has reached out to former Vice President Mike Pence, seeking to interview him regarding Trump’s unlawful efforts to stay in power after losing the 2020 election. Pence is reportedly “open to the request.”
How open he is could be critical for how quickly this happens. If Pence agrees to cooperate there is little Trump can do about it. If Pence decides to just walk in and talk Trump has no practical means to stop him. However, if Pence demands he be subpoenaed Trump could seek to quash the subpoena asserting executive privilege. While unlikely to prevail, such a challenge could delay the interview by weeks or even months.
Pence would be the singularly essential witness to a prosecution against Trump, and others, behind Trump’s campaign to have Pence unilaterally disqualify electoral college votes. Without Pence’s testimony, prosecuting Trump for that pressure campaign is probably not practical. The Constitution confers no such discretion on Pence but Trump insisted Pence do it anyway. Frustrated at Pence’s refusal, Trump set his January 6 mob after Pence in the midst of the violence that Trump was well aware of.
The plot to have Pence reject electoral college votes came from Trump’s attorney John Eastman, also thought to be a target of this investigation.
The charge associated with this plot would likely be conspiracy to defraud the United States under 18 U.S.C. § 371. As I have previously explained, to “defraud” for that statute includes a conspiracy aimed at frustrating any legitimate government purpose. The defrauding does not have to relate to money or property or involve pecuniary loss. In one case, a court found a conspiracy to compile false reports on cotton production violated this statute because it frustrated the government function of gathering data on cotton production. It can be that trivial. Obviously, a conspiracy to defraud the American people out of an election goes further.
In fact, a federal judge has already concluded that Trump (and Eastman) likely engaged in this exact illegal conspiracy. The judge wrote:
the evidence shows that President Trump likely knew that the electoral count plan was illegal. President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371
The DOJ’s desire to interview Pence strongly suggests they are considering charging Trump for that which a judge has already determined Trump is likely guilty.
Like prosecutions, investigations tend to go up the “food chain.” Pence would obviously be at the very top of that food chain, suggesting this investigation is in its late stages.
