Where Things Stand: Pence Rebuffed Jan 6 Panel But Is Open To Considering DOJ Testimony

This is your TPM evening briefing.

NEW YORK, NEW YORK - NOVEMBER 16: Former Vice President Mike Pence visits "Fox & Friends" at Fox News Channel studios on November 16, 2022 in New York City. (Photo by John Lamparski/Getty Images)

November 23, 2022 5:28 p.m.

Start your day with TPM.

The Justice Department wants to question former veep Mike Pence as part of its criminal probe into Donald Trump’s efforts to stay in power after the 2020 election, two people familiar with the matter told the New York Times in a piece published this afternoon. Pence is reportedly considering the request, breaking from his outright refusal to cooperate with the House Jan. 6 Select Committee’s probe into the matter.

A DOJ investigator reached out to Pence’s team before Attorney General Merrick Garland announced on Friday that he was appointing Jack Smith as special counsel to oversee and weigh charges in the DOJ’s criminal probe into Trump’s efforts to overturn the election, as well as the department’s classified records case.

In the Times’ words, Pence “sees the Justice Department inquiry differently given that it is a criminal investigation. His testimony could be compelled by subpoena, though none has been issued.”

Pence has said publicly, both in his new book and in media interviews, that he believes “Congress has no right to my testimony” on what he witnessed behind-the-scenes on Jan. 6 and in the days leading up the insurrection. He recently told the Times that congressional investigators compelling his testimony creates “profound separation-of-powers issues.”

As the Times noted, Trump has attempted to assert executive privilege in the past to try to keep his ex-officials from giving testimony to the DOJ. He did that with two of Pence’s top aides, Marc Short and Greg Jacobs. The Justice Department fought Trump’s executive privilege claims in both of those situations and both men ended up giving interviews to the grand jury. It’s unclear how Trump will proceed in this scenario, after having failed to keep Short and Jacob from sitting for interviews.

Pence is being represented by a familiar face: attorney Emmet Flood, whom you may remember from the Mueller probe. Flood served as the head lawyer for the Trump White House as then-special counsel Robert Mueller looked into the Trump campaign’s ties to Russia in 2016. Flood is also representing Short and “other top White House officials who find themselves as witnesses in the range of congressional and Justice Department investigations into Mr. Trump,” in the Times’ words.

Those are the toplines from the Times’ new report, which you can read in full here.