The Justice Department is attempting 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 his defeat in the 2020 election, according to two people familiar with the matter .
Mr Pence is open to consideration of the application, according to people familiar with his thinking, as he acknowledges that the Justice Department’s criminal investigation differs from the January 6 committee inquiry, whose proposals he flatly rejected.
Complicating matters is whether Mr Trump would attempt to invoke executive privileges to stop him or limit his testimony, a move he has taken with other former officials so far with limited success.
Mr. Pence was present at some of the critical moments when Mr. Trump and his allies plotted to keep him in office and block congressional certification of Joseph R. Biden Jr.’s victory. A cooperation agreement would be the latest notable twist in an investigation already fraught with legal and political ramifications, involving a former president who’s now a declared candidate for a return to the White House — and his potential Republican rivals from 2024 nomination belongs to Mr. Pence.
Thomas Windom, one of the lead investigators investigating the effort to overturn the election, reached out to Mr Pence’s team in the weeks before Attorney General Merrick B. Garland appointed a special counsel on Friday to investigate the Jan. 6 and to oversee a separate investigation into Mr Trump’s handling of classified documents, according to one of those familiar with the matter. Mr. Garland has said the appointment of Special Counsel Jack Smith will not slow the investigation.
Justice Department officials declined to comment. A spokesman for Mr Pence also declined to comment.
Discussions about questioning Mr Pence are said to be at an early stage. Mr Pence has not been subpoenaed and the process could take months as Mr Trump may seek to block or delay his testimony by attempting to invoke executive privileges.
Mr Trump has invoked executive privileges to try to block other former top officials from speaking to investigators. While these efforts have generally been unsuccessful in stopping the officers from testifying before a federal grand jury, they have significantly slowed the process.
Efforts by Mr Trump to slow or block testimony included asserting executive privilege over the testimony of two of Mr Pence’s top advisers: his former chief of staff Marc Short and his general counsel Greg Jacob. But both men returned for grand jury interviews after the Justice Department fought efforts to use executive privilege in a closed trial.
Mr. Pence, who dismissed Mr. Trump’s efforts to include him in the plan to block certification of Electoral College results, publicly criticized Mr. Trump’s behavior in the run-up to the attack on the Capitol on Jan. 6 and so on in the day of the attack as members of a pro-Trump mob chanted “Hang Mike Pence.”
During an appearance in New Hampshire in August, Mr. Pence hinted that he was ready to appear before the Jan. 6 House Committee, which had been pushing for him to tell his story, but he made a reservation.
“If there was an invitation to participate, I would consider it,” Mr Pence said at the time. But he added he was concerned that speaking before a congressional committee would violate the doctrine of separation of executive and legislative powers. “But like I said, I don’t want to get ahead of myself. If there was ever a formal invitation,” he said, “we would give it due consideration.”
However, in interviews leading up to the publication of his new book So Help Me God, Mr Pence was more emphatic in his refusal to testify before the House Committee, claiming that “Congress has no right to my testimony” about what he witnessed.
“There are profound problems with the separation of powers,” Mr. Pence told the New York Times in an interview. “And it would set a terrible precedent.”
But Mr Pence has a different view of the Justice Department’s investigation, according to people familiar with his thinking, because it is a criminal investigation. His testimony could be compelled by a subpoena, although none was issued.
Representing the former vice president is Emmet Flood, a veteran Washington attorney who served as Trump’s lead counsel at the White House investigating special counsel Robert S. Mueller III into a possible conspiracy between the Trump campaign and Russia in 2016.
Mr. Flood is representing several other senior White House officials who are finding themselves as witnesses in the Congressional and Justice Department investigations into Mr. Trump, including Mr. Short.
A growing number of senior officials in Mr Trump’s administration have received subpoenas from grand juries as part of the Justice Department’s probe into a variety of efforts to overturn the election, including a plan to create fake lists of key pro-Trump voters Swing states won by Mr. Biden.
The wide-ranging subpoenas sought information on a variety of topics, including the falsified election plan, attempts to portray the election as marred by fraud, and the inner workings of Mr. Trump’s main post-election fundraising vehicle, the Save America PAC.
Efforts to seek an interview with Mr Pence are breaking new ground for both the department and the former vice president.
Mr Pence is considering a presidential campaign in 2024 in a race for which Mr Trump has already announced his candidacy. And Mr Biden’s Justice Department is trying to use Mr Pence as a potential witness against Mr Trump; Both could end up as Mr Biden’s rivals should he run again, which he has hinted as likely.
Mr Pence has written extensively in his book about Mr Trump’s efforts to remain in power and the pressure campaign he imposed on his Vice President from December 2020.
Among other interactions he describes, Mr. Pence details how Mr. Trump summoned him to the Oval Office on January 4 to meet with a conservative attorney named John Eastman, who repeatedly argued that Mr. Pence was the ceremonial Election oversight duties could exceed college certification by Congress. Mr Eastman promoted the notion that Mr Pence had the power to overturn the results of states where Mr Trump was still trying to contest the result.
Mr. Pence writes about telling Mr. Trump that he has no such authority. In an interview with The Times in relation to the book, Mr Pence was insistent, saying that he was blunt to Mr Trump that he could not do as he pleased.
“In the weeks leading up to January 6, I repeatedly told the President that I have no authority to refuse or return electoral votes,” Pence said in the interview. “It was clear he was getting different legal advice from an outside group of lawyers who honestly should never have been allowed into the building.”
During this time, Mr Trump began publicly pressuring Mr Pence, as well as Georgia officials, to join his efforts to remain in office. At the same time, Mr. Trump began using his Twitter account to draw crowds to Washington for a “protest” at the Ellipse near the White House on January 6, Congressional Certification Day.
The Times previously reported that Mr Pence’s chief of staff, Mr Short, called Mr Pence’s senior intelligence agent, Tim Giebels, to his West Wing office on January 5, 2021. When Mr. Giebels arrived at Mr. Short’s office, the chief of staff said that the President was going to attack the Vice President and that they were running a security risk because of it, a conversation Mr. Short described to the House Special Committee. The committee released a video clip of Mr Short discussing it at one of its public hearings earlier that year.
Speaking to the crowd at the Ellipse at noon on January 6, Mr. Trump put renewed pressure on Mr. Pence, whom he had called a few hours earlier to persuade him to join the last-ditch plot to block certification.
In his address in the Ellipse, Mr. Trump said: “You will never take back our country with weakness. You have to show strength and be strong.”
He continued: “So I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people he listens to.”
A short time later, Mr Trump’s supporters marched to the Capitol where Mr Pence was staying. Hundreds of them stormed the building, smashing windows and rushing through doors, forcing Mr Pence, his wife and daughter to flee his office in the Capitol and take refuge in an underground loading dock. He stayed there and worked to bring the situation under control while Mr. Trump watched coverage of the riots on television at the White House.
Mr Pence wrote about the experience in his book and has since described his anger at Mr Trump being “reckless” and “endangering” Mr Pence and his family.
Although Mr Pence has witnessed a number of official acts by Mr Trump, an interview with the former Vice President would be the first time he has been questioned in a federal investigation into Mr Trump.
Mr. Pence was in the room at many of the key events investigated by Mr. Mueller in the obstruction investigation, but Mr. Pence’s attorney at the time managed to keep him from having to testify.
Attorney Richard Cullen met with Mr Mueller and his team and told them Mr Pence believed Mr Trump had not obstructed justice and what he would say if questioned.
Mr. Mueller’s team never questioned Mr. Pence, and he was never quoted as a witness against Mr. Trump in Mr. Mueller’s final report.
Glenn choke contributed reporting.