Why Mike Pence Is Fighting a DOJ Subpoena on January 6

Pence when he was the loyal subaltern to the 45th president. Photo: John Moore/Getty Images

To a lot of regular people who aren’t political obsessives or social-media hounds, the one thing they probably know about former vice-president Mike Pence is that he resisted intense pressure from Donald Trump on January 6, 2021, to suspend or even reverse Joe Biden’s official certification as the 46th president of the United States. But Pence really doesn’t want to talk about his big moment with the Justice Department. He said this week that he’s willing to go to the Supreme Court to resist a subpoena from Special Counsel Jack Smith, who’s looking at Trump’s effort to subvert the 2020 election. Politico reports:

“It’s unconstitutional,” Pence said during a press availability amid a trip to Iowa. He swiped at what he called the “Biden DOJ subpoena” and said his role as president of the Senate — which he was fulfilling on Jan. 6, 2021, when a pro-Trump mob attacked the Capitol — makes him immune from the criminal grand jury proceedings Smith is leading.

Some people feel Pence deserves a medal for doing his constitutional duty on January 6, while others share Trump’s opinion that he’s an ingrate who stabbed his president in the back. As a likely 2024 presidential candidate, Pence needs to win favor with the latter group, which partly explains his willingness to resist a DOJ subpoena. The Washington Post’s Greg Sargent explains:

Pence is plagued by a tortured relationship to Jan. 6 that he can’t outrun, one that also illuminates the continuing hold of Trump’s insurrectionism on the GOP’s evangelical base, which remains a destructive force in our politics.

If Pence willingly testifies about Trump’s pressure on him, it would remind those voters of his apostasy. So Pence will fight the subpoena all the way — even though the rationale is so weak — hoping to get on the right side of this divide.

That all makes abundant sense. But there could be another reason the former veep would just as soon let sleeping dogs lie when it comes to the attempted election coup. There’s a lot of evidence that Pence didn’t exactly stand up for the Constitution boldly from the get-go when Trump asked him to help steal the presidency. He balked and struggled and tried to find a way to justify doing exactly what the boss wanted; it seems he didn’t make up his mind definitively until the morning of January 6.

But the more potentially embarrassing thing for Pence is that as far as we know, he didn’t object at all to the many phases of the conspiracy to overturn election results that occurred before January 6, some dating all the way back to Trump’s attacks on voting by mail long before the 2020 election. Did Pence know about or do anything to stop the lies Trump and his campaign lawyers spread about voter fraud? Was he in on the fake elector business? Did he participate in or distance himself from the efforts to pressure state legislators to reverse Biden victories in key battleground states?

We don’t completely know the answers to these questions, but they are of obvious interest to the Justice Department, and perhaps to the voters Pence will likely soon be asking for support. But if, as I suspect, the facts show Pence was neither a reflexively loyal subaltern to the Greatest President Ever nor a walking profile in courage in defiance of Trump’s schemes, it’s not going to help further his future political aspirations. So in keeping with his status as a leading member of a party suffused with amnesia about the 2020 elections and how they actually went down, Mike Pence will surely seize on any legal theory available to make the questions just go away.