Now that the House Investigative Committee passed over the opportunity to depose Mike Pence, the Justice Department has decided that his testimony is critical to understanding January 6th. Pence says that he is open to testifying, which is nice of him because it’s normally not optional unless one believes they’re targeted with a crime, too. Now one wonders whether Trump will, once again, try to block Pence’s testimony by asserting executive privilege. From the New York Times:

The Justice Department is seeking to question former Vice President Mike Pence as a witness in connection with its criminal investigation into former President Donald J. Trump’s efforts to stay in power after he lost the 2020 election, according to two people familiar with the matter.

Mr. Pence, according to people familiar with his thinking, is open to considering the request, recognizing that the Justice Department’s criminal investigation is different from the inquiry by the House Jan. 6 committee, whose overtures he has flatly rejected.

Complicating the situation is whether Mr. Trump would try to invoke executive privilege to stop him or limit his testimony, a step that he has taken with limited success so far with other former officials.

Trump has run up against problems with privileges concerning January 6th already.

The Supreme Court has already ruled that Trump couldn’t seek executive privilege with respect to documents that he believes to be his when he took the National Archives to court.

Trump lost a battle for attorney-client privilege with a district judge in California due to the fact that the judge found that the conversations between Trump and his attorney, John Eastman, were not privileged due to the fact that the judge thought the communications constituted a crime. The problems may be even greater with Trump’s communications with Pence.

Over and over, Trump pressured Pence to follow his oath and clear duty under the Constitution, which is a crime in and of itself. Trump made threats. Moreover, Trump was not talking to Pence about an executive duty. They were discussing how to steal an election and how to get around the Constitution. If Trump asserts executive privilege, it will likely not be considered an official duty. Additionally, it might also be considered waived if there were people from outside the executive branch in the room, someone like Steve Bannon or Mike Flynn, who were not lawyers nor executive branch employees.

It seems like DOJ can force Pence to speak to them. They will want Pence to do it voluntarily because the burden would be on Trump to stop it. As we’ve seen, Trump has trouble with these claims.

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[email protected], @JasonMiciak, with Nicole Hickman