Donald Trump's Attempt to Stop Mike Pence Testifying is Doomed to Fail

Former President Donald Trump will not be successful in his attempts to stop Former Vice President Mike Pence from testifying to a January 6 grand jury while citing executive privilege, legal experts have said.

Pence has been ordered to answer questions under oath by special counsel Jack Smith, who is leading the investigation into the Capitol riot and Trump's attempts to overturn the 2020 Election results.

Prosecutors made the significant step to subpoena the former vice president as Pence is seen as one of the key witnesses in the investigation.

Pence has described how Trump repeatedly pressured him to block the certification of Joe Biden's election victory on January 6, 2021, despite not having the authority to do so and it also potentially being illegal.

mike pence jan6 subpoena
Former President Donald Trump, right, and Former Vice President Mike Pence, left, arrive at the daily coronavirus task force briefing at the White House in Washington, D.C. on April 24, 2020. Trump will be unsuccessful in his attempts to stop Pence from testifying to a January 6 grand jury while citing executive privilege, legal experts have said. Drew Angerer/Getty Images

Even as the riot was taking place, Trump tweeted that Pence "didn't have the courage to do what should have been done" by preventing the 2020 election results from being certified, with the former president's supporters heard chanting "hang Mike Pence" in the Capitol corridors.

Trump's lawyers have already indicated that they will seek to invoke executive privilege—which keeps communications between the president and executive branch from becoming public—to prevent Pence from revealing conversations he had with Trump in and around January 6.

However, as explained by former federal prosecutor and legal analyst Joyce Vance in her blog, executive privilege only applies when the president "is engaged in running the country, not when he's conniving to hang onto power after losing an election."

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

Biden has already twice declined to use executive privilege with regards to Trump: first in October 2021 when the House Select committee investigating the January 6 attack sought White House documents and then again in May 2022 in order to authorize the National Archives and Records Administration handing over a further tranche of presidential records from the Trump administration to the committee.

Biden said he declined to invoke executive privilege as it would not be in the national interest to hinder the congressional investigation into the insurrection.

In January 2022, the Supreme Court also rejected another attempt from 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.

Barbara McQuade, a University of Michigan law professor and a former U.S. attorney, said that she does not believe Biden will assert executive privilege if Trump invokes it again for Pence.

"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 and US v Nixon, which says that executive privilege must yield in the face of stronger national interests under criminal investigation," McQuade told Newsweek.

Both McQuade and Vance noted how Richard Nixon failed to use executive privilege as a shield during the Watergate investigation.

In 1973, special prosecutor Archibald Cox subpoenaed the then-president to hand over tapes he recorded in the Oval Office which featured Nixon discussing the burglary at the Democratic National Committee headquarters in Washington, D.C.

Nixon refused while citing executive privilege and took his case to the Supreme Court. Nixon then lost his case, resulting in the tapes becoming public and revealing the president was aware of the break-in and involved in the attempted cover-up.

Vance also believes that there is no indication that Biden or the courts will shift from their stances that Trump can cite executive privilege during a criminal investigation into the former president.

"The smart money says he [Trump] will be unsuccessful here. Executive privilege won't be enough to keep Mike Pence from testifying. The courts may have even already made, in essence, that ruling," Vance said. "The clock is ticking on Mike Pence's appearance before the grand jury."