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Justice Department subpoenas former Vice President Pence in Jan. 6 Trump probe

ASMA KHALID, HOST:

The special counsel investigating former President Donald Trump's role in the January 6 attacks subpoenaed former Vice President Mike Pence late last week. It is not yet clear if Pence will comply with the subpoena, but the move could prove to be a milestone in the Justice Department's ongoing investigations. Trump has previously attempted to block testimony from his allies in regards to January 6, and he could try to legally challenge this Pence subpoena, too. For more, we are joined now by Renato Mariotti, former federal prosecutor. Welcome to the show, sir.

RENATO MARIOTTI: Happy to be here.

KHALID: So Trump's lawyers may try to fight off this subpoena on the grounds of executive privilege. Can you explain that to us? How could that work?

MARIOTTI: Sure. So executive privilege is essentially a doctrine that says that close advisers to the president and the president himself do have a certain amount of privilege that shields them from discovery from other branches of government. It's a little bit more difficult to assert executive privilege when the executive branch itself is conducting a criminal investigation. And so courts have repeatedly held that where there's a need for a criminal investigation to obtain evidence that can't be obtained elsewhere, that that overrides executive privilege.

KHALID: And could Mike Pence, the former vice president, challenge the subpoena on similar grounds?

MARIOTTI: He could. I think he would have - he would also likely be unsuccessful.

KHALID: Got it. So the DOJ's January 6 investigation has been going on for quite some time now. Can you explain why the subpoena was issued now?

MARIOTTI: Well, it certainly suggests that - first of all, that Jack Smith, the special counsel, is pursuing this aspect of his investigation very vigorously. In other words, he is very taking the January 6 part of the investigation seriously. He views that as a viable avenue for potential charges, which is interesting because I think many have speculated that perhaps he'd be more focused on the Mar-a-Lago documents case. It also suggests that his investigation, at least as to this aspect, the decertification of the vote or the sending of electoral votes back to the states - that portion of the investigation is very far along because Mike Pence is the sort of witness you would talk to later in that investigation rather than early on.

KHALID: Got it. I actually want to ask you a follow up there. I mean, you're suggesting that that this is an indication, for example, that the January 6 investigation is quite far along, then, at this point, by issuing the subpoena of Mike Pence, because he was involved in some of that fake elector scheme - or not involved. But, you know, he's spoken very publicly about the president's attempt to overturn the election.

MARIOTTI: That's correct. And in fact, I mean, given that other aides were present during conversations, as all of us in the public heard, you know, testimony to Congress, those aides could have testified regarding a lot of the activity surrounding that. And so I would expect those aides would have all been interviewed first, which would have put Mike Pence later in the line of witnesses to be interviewed.

KHALID: You know, one of the things that I have been kind of puzzling over myself - I cover politics as my day job - is whether Mike Pence and Donald Trump have the same calculations in mind here. And I understand you cannot necessarily read into either one of their minds. But would the Department of Justice have issued the subpoena if it thought Mike Pence would not talk?

MARIOTTI: It's a great question. I think the latter part is the harder part to answer. In other words, I think in an ordinary circumstance you might. I mean, in other words, they might have issued the subpoena. You know, if they had not - even if they thought there was some - there might be some legal challenge, if they thought, for example, that in the end of the day, Mike Pence wouldn't take the Fifth.

Now, I will just say here, I don't think there would be a basis for Mike Pence to do so. I don't think he's done anything wrong. And I think the calculus for Mike Pence and Donald Trump is very different. In other words, Donald Trump is, you know, a subject of this investigation. It's apparent that they're trying to build charges against him. Mike Pence is a witness or a victim, depending on the way you look at it. I mean, he was not involved, as you mentioned a moment ago. And so really, the calculus is entirely different for him. And, of course, I think that's what the Justice Department is counting on.

KHALID: How important do you think Mike Pence's testimony would be towards indicting the former president?

MARIOTTI: I think it would be pivotal. If Mike Pence, for example, said that, you know, he - you know, the president was trying to pressure him to do something that was plainly illegal, that he was, you know, trying to, you know, essentially ask Pence to set the law aside, I think that would be very different than testimony in which Pence said that he thought that Trump was just repeating legal theories given to him by his lawyers and didn't take it very seriously and didn't push that hard. In other words, those two versions of the same conversation are very different. And I do think that Pence ultimately could be a very important witness to the special counsel or could potentially undermine this case.

KHALID: We've got about a minute left, and I wanted to ask that in the event that the former vice president does testify, what specifically do you anticipate the special counsel is trying to seek out from him?

MARIOTTI: Great question. I mean, first of all, I think that primarily the special counsel is going to be focused on conversations between Mike Pence and Donald Trump in which no one else was present, because Mike Pence, of course, is the only person who could testify regarding these conversations. And I think he's also going to be interested in how Pence regarded the efforts by Trump to pressure him to set aside the electoral votes or send them back to the states. In other words, did he feel threatened? Did he feel pressured? And did it appear that this was not a legal strategy, but rather some sort of unlawful attempt to overturn the election?

KHALID: Renato Mariotti - that's former federal prosecutor Renato Mariotti. Thank you very much for taking the time.

MARIOTTI: Thank you. Transcript provided by NPR, Copyright NPR.