Pence was the target of Trump’s last-ditch bid to derail the transfer of power to Joe Biden, leaning on his then-vice president to prevent Congress from counting electoral votes that would affirm Biden’s victory.
Pence resisted the effort, drawing Trump’s fury, even as a mob on Jan. 6, 2021, violently attacked and breached the Capitol, where Pence had been presiding over the electoral vote count.
One advantage for Smith in pursuing Pence’s testimony is that Pence has sought to publicly describe his private interactions with Trump during the chaotic weeks before Jan. 6. Pence wrote about it in his recently released book, indicating he had directly told Trump that even his own lawyers didn’t think courts would support his plan to have Pence single-handedly overturn the results.
Two of Pence’s top aides — Marc Short and Greg Jacob — have already testified to the grand jury and are the subject of ongoing secret legal proceedings pending before the federal courts related to Trump’s effort to assert privilege over their testimony. Both men also testified at length to the Jan. 6 select committee last year and provided crucial evidence that a federal judge said pointed to “likely” crimes committed by Trump.
The subpoena has the potential to trigger an executive privilege fight if Trump or Pence ask a judge to rule that some or all of their testimony should be off limits to prosecutors and the grand jury in order to protect White House deliberations.
Attorney General Merrick Garland tapped Smith to serve as a special counsel shortly after the midterm elections in November and following an announcement by Trump that he would be a candidate for president in 2024. Smith’s mandate includes not only Jan. 6-related matters and alleged interference with the 2020 presidential election, but also the presence of a range of documents with classification markings at Trump’s Florida home.
Josh Gerstein and Meridith McGraw contributed to this report.
