Pence subpoenaed by special counsel investigating Trump’s efforts to overturn election

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• Geoff Bennett:

  Former Vice President Mike Pence is at the center of two DOJ investigations this week. The FBI found one additional classified document during a search of his Indiana home today, after a small number were discovered last month.

  And, yesterday, reports surfaced that Pence was subpoenaed by the special counsel investigating former President Trump's efforts to hold onto power. That makes the former vice president the highest-ranking official so far to be called on for information about January 6.

  Neal Katyal served as the acting solicitor general in the Obama administration, and joins us now.

  Neal, it's great to see you.

  The first question is this. Would the special counsel, Jack Smith, take this extraordinary step of issuing a criminal subpoena to the former vice president unless he was very serious about prosecuting Donald Trump?

• Neal Katyal, Former Acting U.S. Solicitor General:

  Well, I don't think we could say that it's about seriousness of prosecuting Donald Trump.

  It does show a seriousness, Geoff, in the investigation. So it's a pretty rare thing to have a subpoena of a government official, let alone someone like the former vice president. It's — I think there have been three subpoenas of presidents, Thomas Jefferson back in the early 1800s, Richard Nixon during Watergate, and then Bill Clinton during the Whitewater investigation, and I'm not sure any subpoenas of vice presidents before.

  So it's a big deal. But we don't know enough about why Jack Smith was subpoena and Pence. We can guess that a good chunk of it has to do with the fact that Pence was the kind of fulcrum point for the pressure Donald Trump and others exerted to try and throw out the election results culminating on January 6.

• Geoff Bennett:

  Mike Pence, as I understand it, could challenge this under executive privilege. So too could Donald Trump.

  How would those claims hold up under scrutiny, especially for former Vice President Mike Pence, who has written a book, he's given interviews, he wrote a detailed op-ed for The Wall Street Journal back in November about the events around January 6?

• Neal Katyal:

  Any assertion of executive privilege to try and block telling the truth is going to fall flat on its face. It won't be successful. And that's so for a few reasons.

  One, Geoff, as you pointed out, there's already been a waiver of executive privilege by former Vice President Pence because he's written and talked about this extensively. Second, the U.S. Supreme Court has said that executive privilege really lies in the hands of the incumbent president — that's Joe Biden — not a former president.

• Geoff Bennett:

  How does the special counsel navigate this sensitive political territory, given that Donald Trump is running for reelection, and Mike Pence might very well soon announce that he's running too?

  Of course, Pence isn't a target of the special counsel investigation. But there is the political consideration here.

• Neal Katyal:

  I think the navigation this, Geoff, is quite easy. It's the guiding principle no person is above the law.

  That's like the — what our country was founded on. It's like Thomas Paine's "Common Sense" is all about this. And so just because you're running for office, you don't get some sort of get-out-of-jail-free card.

  Now, it's the case that the Justice Department has opined twice that, if you're a sitting president, then you can't be indicted. I think that that's wrong. But that only goes so far as a sitting president. And that's, of course, why Donald Trump skated on the Mueller investigation, because Bill Barr concluded that you couldn't indict a sitting president.

  But it can't possibly be the law that you can't indict someone while they're president and you also can't indict them after their president if they announce that they're running again for office.

• Geoff Bennett:

  As we mentioned, the FBI today discovered an additional classified document at Mike Pence's Indiana home during a voluntary five-hour search of the House. That's what a Pence adviser told me earlier today.

  Is this what we can expect now moving forward when the DOJ encounters high-ranking politicians, former officials who have classified documents where they shouldn't be?

• Neal Katyal:

  As someone who was the former national security adviser at the Justice Department, I find it very dispiriting that anyone, whether it's Vice President Pence or President Biden or Donald Trump, is bringing any classified information home.

  It's an obvious problem. But what Pence did does not appear criminal in the same way as what Donald Trump is alleged to have done. So, with Pence, it seems very inadvertent and he right away called the FBI through his lawyers and allowed them to search the home. It took a while for that search to happen, but it does seem like it looks like cooperation existed there, whereas, with Trump, he denied and lied about having those documents.

• Geoff Bennett:

  Neal Katyal, thanks, as always, for your insights. We appreciate it.

• Neal Katyal:

  Thank you so much.

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