The Justice Department is seeking to question former Vice President Mike Pence as a witness in connection with its criminal investigation into former President Donald Trump’s efforts to stay in power after he lost the 2020 election, according to two people familiar with the matter.
Pence, according to people familiar with his thinking, is open to considering the request, recognizing that the Justice Department’s criminal investigation is different from the inquiry by the House Jan. 6 committee, whose overtures he has flatly rejected.
Complicating the situation is whether Trump would try to invoke executive privilege to stop him or limit his testimony, a step that he has taken with limited success so far with other former officials.
Pence was present for some of the critical moments in which Trump and his allies schemed to keep him in office and block the congressional certification of Joe Biden’s victory. An agreement for him to cooperate would be the latest remarkable twist in an investigation that is already fraught with legal and political consequences, involving a former president who is now a declared candidate to return to the White House — and whose potential rivals for the 2024 Republican nomination include Pence.
Thomas Windom, one of the lead investigators examining the efforts to overturn the election, reached out to Pence’s team in the weeks before Attorney General Merrick Garland appointed a special counsel Friday to oversee the Jan. 6 investigation and a separate inquiry into Trump’s handling of classified documents, according to one of the people familiar with the matter. Garland has said that the appointment of the special counsel, Jack Smith, will not slow the investigation.
Officials at the Justice Department did not immediately respond to a request for comment. A spokesperson for Pence declined to comment.
The discussions about questioning Pence are said to be in their early stages. Pence has not been subpoenaed, and the process could take months because Trump can seek to block, or slow, his testimony by trying to invoke executive privilege.
Trump has cited executive privilege to try to stop other former top officials from talking with investigators. While those efforts have generally been unsuccessful in stopping testimony by the officials to a federal grand jury, they have significantly slowed the process.
Trump’s efforts to slow or block testimony included asserting executive privilege over testimony from two of Pence’s top aides: his former chief of staff, Marc Short, and his general counsel, Greg Jacob. But both men returned for grand jury interviews after the Justice Department, in a closed-door court proceeding, fought the effort to apply executive privilege.
Pence, who rebuffed Trump’s efforts to enlist him in the plan to block certification of the Electoral College results, has been publicly critical of Trump’s conduct in the run-up to the Jan. 6 assault on the Capitol and on the day of the attack, when members of a pro-Trump mob were chanting “Hang Mike Pence.”
In interviews for the release of his new book, “So Help Me God,” Pence has asserted that “Congress has no right to my testimony” about what he witnessed, despite efforts by the House Jan. 6 committee to have him tell his story.
“There’s profound separation-of-powers issues,” Pence told The New York Times in an interview. “And it would be a terrible precedent.”
But Pence, according to people familiar with his thinking, sees the Justice Department inquiry differently, given that it is a criminal investigation. His testimony could be compelled by subpoena, though none has been issued.
The former vice president is being represented by Emmet Flood, a veteran Washington-based lawyer who served as the lead Trump White House lawyer dealing with the investigation by Robert Mueller, the special counsel, into possible conspiracy between the Trump campaign and Russia in 2016.
Flood is representing several other top White House officials who find themselves as witnesses in the range of congressional and Justice Department investigations into Trump, including Short.
The effort to seek an interview with Pence puts both the department and the former vice president in uncharted territory.
Pence is considering a campaign for president in 2024, in a race that Trump has already announced his candidacy for. And Biden’s Justice Department is seeking to use Pence as a potential witness against Trump; either could end up as rivals to Biden should he run again, which he has indicated is likely.
Pence has written in detail in his book about Trump’s efforts to stay in power and the pressure campaign he imposed on his vice president beginning in December 2020.
Among other interactions he describes, Pence details how Trump summoned him to the Oval Office on Jan. 4 to meet with a conservative lawyer named John Eastman, who repeatedly argued that Pence could exceed the ceremonial duties of overseeing the Electoral College certification by Congress. Eastman was promoting the notion that Pence had the power to set aside the results from states where Trump was still trying to challenge the outcome.