Mike Pence’s options are dwindling
A federal judge has decreed that former Vice President Mike Pence must comply with the DOJ subpoena to testify before the federal grand jury. The testimony at issue concerns Pence’s conversations he had with Donald Trump leading up to the January 6 insurrection.
What options are available to Pence to weasel out now? There are a few, but they are neither attractive nor particularly useful, and they could diminish Pence’s stature in the eyes of his followers, or even attract a criminal indictment for himself.
The first thing Pence can do is the obvious: he can appeal the decision. But that tack no longer automatically represents the win or delay it used to. The courts are on to Republican delaying tactics, and have found ways to quickly fastrack any such moves.
Recall that a recent appellate court gave Trump six hours to make his claim and the DOJ an additional six hours to make its counterclaim? Trump lost that one. The days where Trump and his thugs can weaponise the appellate system in order to inculcate long delays are clearly over.
So Pence will almost certainly lose that appeal. In any case he won’t even gain a substantive delay. So he’s going to almost certainly have to testify.
So what’s next? What privilege can Pence invoke next? You guessed it. His Fifth Amendment privilege. But the 5A, as it’s known, isn’t quite the panacea everyone thinks it is. For one thing, it can be invoked only if Pence actually believes that by testifying he could criminally incriminate himself. If he’s using it to just dodge questions and Jack Smith reasonably doubts that Pence isn’t genuine in his invocation, Smith can haul Pence in front of a judge who might force him to testify.
If, on the other hand, a judge has determined that Pence has a legitimate fear of self-incrimination, Smith can “immunise” Pence against prosecution. Once he’s immune from prosecution, Pence can no longer invoke the 5A.
In other words, Pence will be in the position all MAGA Republicans dread. He will have to testify against Donald Trump. Since Pence, like all MAGA Republicans, is a coward, he might be amazed to discover that testifying against his personal deity isn’t the career-ending move he thinks it is. Even so, it will be delightful to watch him squirm.
Finally, Jack Smith could just indict Pence and try to flip him as a cooperating witness for a lesser charge. Either way, the path ahead for Pence is rocky indeed. I look forward to watching him negotiate the hell he put us all through when he was vice president. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.