On Tuesday, a federal district court in Washington ordered former Vice President Mike Pence to testify before the grand jury investigating former President Donald Trump’s attempt to overturn the 2020 presidential election. The order was another judicial loss for Trump, even as Pence could claim to win a narrow ruling about questions he could avoid answering.
That narrow win has little to no significance, though, for Trump, the actual target of Special Counsel Jack Smith’s investigation.
While the order itself remains under seal, by report, the court specified that Pence must testify about any conversations he had with Trump involving “wrongdoing” as the then-president sought to reverse his electoral defeat before Jan. 6. Pence’s pyrrhic victory Tuesday was that he was excused from answering questions about his Jan. 6 role as the officer presiding over Congress’ certification of the 2020 presidential election.
You can be sure that the events involving Pence in that role are not Jack Smith’s priority. Even if future litigation may arise about whether Pence has to answer questions, for example, regarding the attempt by Republican Sen. Ron Johnson to deliver a slate of fake electors from Wisconsin that day, you can be sure that Smith has a mountain of evidence about that fraudulent scheme, and Johnson is not in Smith’s crosshairs.
What Smith doesn’t have are the words that Trump spoke to Pence when they were alone, evidence that is nearly certain to convey a criminal state of mind. That is almost always the most difficult element to prove in white-collar crimes. Pence was in the room where those words happened.
While the subject of any such conversations would have centered on Pence’s anticipated congressional role on Jan. 6, the order reportedly says that Pence must testify if Trump’s words involved “any illegal acts on Trump’s part.” That’s really the only thing that matters here.
Need proof that Pence and Trump were the losers? Watch who appeals. That’s what losing parties do. Before the order, Pence already vowed to do so. He’s unlikely to have much luck.
Recall that Pence refused to testify before the Jan. 6 committee. He said doing so would establish “a terrible precedent.” To get his testimony, the committee would have had to go to court to challenge Pence’s position and expose the legal vacuity of his claim. Under the deadline of committee’s mandate expiring this past January with a new Congress, it had no time.
Not so in a criminal investigation run by a prosecutor serious about building his case about the run-up to the Jan. 6 attack.
What Tuesday’s ruling reaffirms is that federal courts continue to be committed to the rule of law and to speed in dealing with the criminal investigations of Trump. Last week, in affirming the March 17 district court order that former White House Chief of Staff Mark Meadows testify, the Court of Appeals for the District of Columbia Circuit moved faster than Han Solo’s Millennium Falcon. In Pence’s case, the district court appears to have taken only five days from hearing argument to ruling, more evidence of a special counsel and of courts in a hurry.
It took the Justice Department far too long to aggressively move this investigation to this point. But here’s the irony for Trump. He thought that announcing early his 2024 presidential bid would buy him a good narrative—“my indictment is nothing but politics because I’m running for president!” What his early announcement cost him, however, was the appointment of Smith as special counsel, and orders like the one on Tuesday.
To be sure, the Pence ruling does set a precedent that the Constitution’s speech or debate clause applies to a vice president on the one day he is acting as the presiding officer over the joint session of Congress certifying a presidential election. But that precedent is not about to open a floodgate of future litigation involving vice presidents’ claims to immunity from having to testify about their role in the certification of an election.
It took a Trump to get us here after 235 years of constitutional history. Now, though, the aggressive investigating and accelerating pace of Smith signals the likelihood of Trump being charged well before the 2024 campaign heats up. Justice regarding Jan. 6 has been delayed, but the special counsel has the dominoes falling in place to ensure that a federal criminal courtroom date for Donald Trump is not denied.
