Here’s how Mike Pence may have blown up his executive privilege defense
According to The New York Times, the Justice Department is now moving to question former Vice President Mike Pence as part of the criminal investigation into the January 6 attack on the U.S. Capitol — a move that a week after Pence, who was the subject of a pressure campaign by Trump allies to throw out electoral votes in states carried by Joe Biden, flatly refused to cooperate with House investigators in their own parallel investigation.
One of Pence's — or Trump's only potential defenses against him testifying to federal investigators is to claim executive privilege over the conversations he had in the White House. But, as former federal prosecutor Renato Mariotti said on Wednesday's edition of MSNBC's "The Beat," there's a key problem with that: he already wrote a book discussing at least some of the information.
"I think we had a preview because of the book that Michael Pence has written," said anchor Katie Phang. "And I think he's pretty much home run spoken to the public. The New York Times reports, 'Complicating the situation is whether Mr. Trump would invoke executive privilege to stop him ... or to limit Pence's testimony, a step that he's taken with limited success so far with other former officials.' What's the bottom line, could executive privilege stop Mike Pence from voluntarily testifying?"
"It's not going to work," said Mariotti. "Well established in the D.C. Circuit Court of Appeals, that executive privilege does not trump the need of criminal prosecutors to get testimony via a grand jury subpoena as long as they can't get the information elsewhere ... no one knows what happened in those conversations between Mr. Trump and Mr. Pence, other than Mr. Pence. And Mike Pence was present during conversations about what Jeffrey Clark and John Eastman were saying and doing, their plans and their proposals. And we know they're within the DOJ's crosshairs, as well."
"A quick question, the fact that Mike Pence has written a book and put information within it about conversations, interactions he had vis-a-vis January 6th, does that help the DOJ in any way to boost legal arguments to make sure that they can get Pence to testify?" asked Phang.
"I think our viewers know you are a lawyer," said Mariotti. "That's a smart question ... the answer is absolutely. Because that means also there is a waiver of privilege. Even to the extent there was privilege or wasn't here, you know, that will be overcome by the waiver."
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