Former Vice President Mike Pence's attempts to avoid testifying for the federal investigation into the January 6, 2021, riot at the United States Capitol building will ultimately fail, said former federal prosecutor Glenn Kirschner on Saturday.
Pence, who served as former President Donald Trump's vice president from 2017 to 2021, was subpoenaed last month by special counsel Jack Smith. Smith is leading the Department of Justice's (DOJ) probe into Trump's involvement in the attempt to overturn the results of the 2020 presidential election, which Trump has said, without substantial evidence, was stolen from him.
However, Pence has sought to block the subpoena, describing it as "unconstitutional." Trump's legal team has further claimed executive privilege over Pence's testimony.
Kirschner, now an MSNBC legal analyst, said Pence will eventually have to testify, predicting that his attempts to block the subpoena will fail during an appearance on MSNBC's The Saturday Show.
"Mike Pence will see the inside of a grand jury room, and he will testify. The executive privilege is basically gone at this point. The court has ruled over and over again, dating back to Richard Nixon's time, that executive privilege will yield when you are investigating significant crimes before the grand jury," Kirschner said.
Meanwhile, Kirschner told Newsweek on Saturday that Pence's testimony would be "some of the most damaging evidence because Pence has direct evidence of Donald Trump's crimes."
"The fact that Mike Pence can relay first to a grand jury, but then to a trial jury, the very words Donald Trump used when he was trying to pressure Pence to join the conspiracy, is direct evidence both of Donald Trump's criminal conduct and perhaps more importantly, it's evidence of Donald Trump's criminal intent, his corrupt state of mind, his guilty mens rea," the former federal prosecutor added.
Kirschner said Pence's motivations for blocking the subpoena are likely to be "purely political," as Pence is reportedly considering running for the 2024 Republican presidential nomination against Trump.
"Mike Pence really has no natural constituency at this point, but nobody wants to publicly buck Donald Trump because Republicans know that will lose them a significant share of the Trump base," he said.
Kirschner also cast doubt that Pence would be able to successfully invoke speech or debate clause privilege, which states that members of Congress cannot be questioned over legislative duties. Pence's legal team has argued the privilege applies to his case because he was serving as the president of the Senate to oversee the certification of the Electoral College the day of the riot.
He noted that Senator Lindsey Graham, a South Carolina Republican, used a similar argument when called to testify in a Georgia investigation into Trump's alleged attempts to overturn the state's 2020 election results, but was ultimately required to testify.
"He's [Pence] not a legislator, so he doesn't have speech or debate clause privilege. Even Lindsey Graham, who is a legislator, could not avoid going into the grand jury in Georgia and testifying because of the speech or debate clause privilege. He was ordered to testify," Kirschner said. "Mike Pence is not a legislator, so he has even less speech or debate clause privilege."
Newsweek reached out to Pence's press office for comment via email.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Andrew Stanton is a Newsweek weekend reporter based in Maine. His role is reporting on U.S. politics and social issues. ... Read more
