DOJ 'Seriously Considering' Charges Against Donald Trump: Legal Analyst

Mike Pence being subpoenaed as part of the January 6 investigation shows the Department of Justice is "seriously considering" bringing criminal charges against Donald Trump, a legal expert told Newsweek.

The former vice president was summoned to testify and provide documents by special counsel Jack Smith, who is leading the probe into Trump's attempts to overturn the 2020 election results and the events leading up to the Capitol riot.

Pence is seen as a key witness in the investigation, given his proximity to Trump. The former president also repeatedly and falsely claimed Pence could prevent Joe Biden from being declared the winner of the 2020 election by rejecting the electoral votes during Pence's purely ceremonial role of presiding officer of the Senate.

Barbara McQuade, a University of Michigan law professor and a former U.S. attorney said that subpoenaing Pence to testify under oath is a key step for prosecutors, while also setting up yet another showdown with regard to executive privilege.

pence jan 6 subpoena trump
Above, Donald Trump and Mike Pence look on during the daily COVID-19 briefing in the Brady Briefing Room at the White House on April 2, 2020. Pence being subpoenaed as part of the January 6 investigation shows that the DOJ is "seriously considering" bringing charges against Trump, a legal analyst tells Newsweek. MANDEL NGAN/AFP/Getty Images

"It signals that DOJ is seriously considering criminal charges against Trump for January 6," McQuade told Newsweek."While it does not mean charges are a certainty, DOJ would not take such a significant step as subpoenaing a former VP if they thought the case was unlikely to result in charges.

"It also suggests that charges are close. Prosecutors typically question the top witnesses at the end of the investigation after they have learned as much as they can about the facts."

Trump's lawyers have already indicated they will attempt to stop Pence from complying with the subpoena while citing executive privilege—which keeps communications between the president and executive branch from becoming public.

However, in order for a former president to assert executive privilege, the incumbent president would also have to allow it.

Biden has already declined to invoke executive privilege after a number of Trump allies, including former White House adviser Steve Bannon and ex-White House trade adviser Peter Navarro refused to comply with their subpoenas issued to them by the House Select Committee investigating the January 6 attack.

In January 2022, the Supreme Court rejected Trump's bid to use executive privilege to block the January 6 House committee from gaining access to his White House records as part of their investigation.

"Biden will decline, I am sure, and if it goes to court, I think Trump will lose based on the court's earlier decision that Trump could not use executive privilege to block the National Archives from producing documents to the Jan 6 Committee," McQuade said.

McQuade added that Biden and the Supreme Court might reject calls to invoke executive privilege as it is not in the national interest to hinder the criminal investigation, similar to what occurred with Richard Nixon during the Watergate scandal in the 1970s.

During the criminal investigation, Nixon was subpoenaed to hand over tapes and transcripts of conversations related to the burglary at the Democratic National Committee headquarters in Washington, D.C.

When Nixon refused, the case went to the Supreme Court where the then-president ultimately lost and the tapes became public, resulting in his resignation.