Trump’s attempt to block the former vice president’s testimony on executive privilege grounds was precluded by the Supreme Court nearly half a century ago.
The third vice president in the history of the United States, while he was in office, killed the nation’s first treasury secretary in a duel and was later charged with — though never convicted of — treason. You’ll have to excuse me, then, if my pulse hasn’t quickened over the historical significance that the media-Democrat complex perceives in Thursday’s grand-jury testimony by former vice president Mike Pence in a criminal investigation of former president Donald Trump — specifically, Biden Justice Department–appointed special counsel Jack Smith’s probe of whether Trump corruptly obstructed the congressional proceeding in which lawmakers ratified President Biden’s victory in the 2020 election.
Reportedly, Pence spent several hours testifying before a grand jury in Washington on Thursday. The former vice president is an excellent lawyer who is advised by excellent lawyers, so I’m confident he has long known this day would come. He did not claim, as Trump did, that testimony by a vice president regarding communications with the president while they were both in office would violate executive privilege. That contention had no chance of success.
Instead, Pence claimed that he was immune from subpoena under the Constitution’s speech-or-debate clause. I believe he made that implausible claim, not because it had much chance of success, but because he is running for president — not yet formally, but obviously. He unrealistically hopes that the rabid Trump base, much of which has not forgiven him for refusing to collaborate in Trump’s attempt to overturn the 2020 election, will nevertheless forgive him for testifying against Trump if he can show that he tried to avoid testifying. Good luck with that.
As I’ve argued, Pence’s speech-or-debate-clause claim was meritless. Notwithstanding the Constitution’s making the vice president the officer who presides over the Senate, the veep is still a high executive official. The speech-or-debate clause (which immunizes lawmakers from answering for their legislative acts anywhere other than Congress) applies only to senators and House members, which Pence obviously was not. Although Pence persuaded a judge that he might have some immunity regarding his communications with members of Congress in connection with his duties as the Senate’s presiding officer, that is not what prosecutors wanted to question him about. The special counsel is interested in his communications with Trump and Trump’s advisers, who were pressuring him to invalidate electoral votes certified by key states won by Biden. The former vice president did not appeal a district court ruling that he would have to provide that testimony.
But Trump did. The former president argued in the district court, and in an emergency application to the D.C. Circuit appeals court, that Pence’s grand-jury testimony should be barred by executive privilege. Formally, Trump lost that appeal on Wednesday night. Practically, he lost it nearly half a century ago. That’s when the Supreme Court rejected then-president Richard Nixon’s contention that executive privilege barred the Court from enforcing a special prosecutor’s subpoena for evidence — mainly, the White House tapes — relevant to the Watergate criminal investigation.
Executive privilege is not mentioned in the Constitution, but the Supreme Court’s 1974 decision in United States v. Nixon recognized the need for it, both on separation-of-powers grounds (which caution against undue judicial interference in the operations of the executive branch) and on the imperative to promote candor in executive-branch deliberations. Yet the Court was adamant that the confidentiality privilege afforded the president is not absolute. Mainly, it weighs heavily in connection with the “need to protect military, diplomatic, or sensitive national security secrets.” Beyond that, the Court held:
When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
This reasoning, clearly, applies equally to criminal investigations by grand juries as to criminal trials that result from such grand-jury investigations.
Pence’s communications with Trump are patently relevant to the question of whether Trump corruptly obstructed the January 6 joint session of Congress. It is no surprise that the D.C. Circuit rejected Trump’s executive-privilege claim, as it has similar claims he has made in the past two-plus years to block congressional investigators and prosecutors.
On that score, it is significant that President Biden has not supported President Trump’s executive-privilege claims, and did not do so in connection with the Pence grand-jury subpoena. It is difficult to imagine that a court would uphold an executive-privilege invocation that would deny testimony by former executive officials in a criminal investigation if the incumbent president does not claim that the testimony would harm American interests or executive-branch operations.
There is no timetable for Smith’s investigations of former president Trump in connection with the 2020 election and the allegedly illegal retention of classified documents at Mar-a-Lago. It is safe to say, though, that former vice president Pence’s testimony is critical to the former.