Don’t expect criminal charges against the former vice president, or the appointment of a special counsel.
In connection with the consensual search of former vice president Mike Pence’s residence, which the FBI began conducting earlier today, press reports indicate that Pence has been cooperative with the Justice Department and FBI. In addition to today’s residential search, the bureau is likely to conduct a search, also with Pence’s consent, of his political organization’s private office in Indiana.
The former vice president and his wife have not been at home today during the search. They are in California visiting family (including a newly born grandchild).
One is tempted to say that these searches are pointless, except that FBI agents found documents marked classified, as well as other relevant material, in the Delaware home and Washington, D.C., office of President Biden long after the White House claimed that Biden’s private lawyers had completed thorough searches and had found no additional classified items. From the prosecutors’ point of view, such searches are necessary, even if unlikely to yield much.
Rudimentary investigative steps cannot be skipped. Recall, for example, that one of the great derelictions of the Russiagate probe was the Obama Justice Department’s failure to take custody of the Democratic National Committee’s servers so that the FBI could conduct its own forensic investigation of suspected Russian cyber-espionage activities. It is possible that the DNC’s private contractor did a competent job (note that that contractor, CrowdStrike, admitted in congressional testimony that it could not prove that Russian hackers had exfiltrated data), but the public expects the Justice Department to conduct a thorough investigation — not farm it out. That requires checking all the basic boxes.
As I explained in a column this morning, it is highly unlikely that Pence is going to be charged with a crime related to his unauthorized retention of classified documents. But, if only for appearance’s sake, the Justice Department had to search his home. DOJ went to great lengths to have the FBI conduct a compulsory search of former president Trump’s residence and then to consensually search Biden’s private locations when it emerged that he, too, had mishandled national-defense information. Under the circumstances, the government could not decide that, in Pence’s case, FBI searches are unnecessary.
Finally (at least for now), there is this from the New York Times report about today’s search:
Attorney General Merrick B. Garland has declined to say whether the Justice Department’s involvement in the matter signaled an impending criminal investigation that might warrant referral to a special counsel.
To the extent that this passage implies that a special counsel should be appointed if there is a criminal investigation of Pence, it’s wrong. (I am not arguing that the Times is saying that; just that this passage could be interpreted that way.)
First, unlawfully retaining classified documents is a crime (though one that often is not prosecuted against current or former high-ranking officials), and the FBI is in the criminal-investigation business. Ergo, if bureau agents are conducting a search, even a consensual one, because classified intelligence has been found in an unauthorized place, then there already is a criminal investigation — no need to glean any signals.
Second, to repeat what I’ve previously contended, there is no need for a Pence special counsel. The question whether to appoint a special counsel does not depend on the type of crime involved but on whether the Justice Department is beset by a conflict of interest that would make it unethical for DOJ to conduct the investigation. There is no such conflict in connection with a Biden Justice Department investigation of Pence. (By contrast, there would be a profound conflict if the Biden Justice Department were to investigate Biden, to whom DOJ is subordinate.) There is no need for a special counsel to decide whether Pence should be prosecuted. While there is every reason to expect that the Biden Justice Department will elect not to prosecute, there is at the moment no reason to question the legitimacy of its making that judgment call.