What Kind of Witness Will Mike Pence Be?

The day after Donald Trump was arraigned in Washington, D.C., on four counts related to an alleged conspiracy to prevent the electoral votes in the 2020 Presidential election from being counted, his former Vice-President, Mike Pence, was campaigning for the Republican Presidential nomination in Londonderry, New Hampshire. There he was interrupted by hecklers, some of them carrying Trump signs. “Why didn’t you uphold the Constitution?” a man shouted. “I upheld the Constitution. Read it,” Pence replied, as he shook hands with some young people. The heckler wasn’t satisfied. “You sold the people out,” he said. “You sold all these kids out, too.” A woman yelled, “Traitor!”

Pence had heard it all before. At 2:24 P.M. on January 6, 2021, Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” What he should have done, according to Trump, was to reject, while ceremonially presiding over a joint session of Congress, the electoral votes from states that Joe Biden had won. A minute after Trump tweeted, the Secret Service decided to move Pence to a more secure location in the Capitol; on the way, he came within forty feet of rioters. Some in the crowd that day were chanting, “Hang Mike Pence!,” “Traitor Pence!,” and “Bring him out!”

The chanting has never really stopped, for reasons that go beyond the resentments of Trumpists. Trump is seeking the Presidency again; this time, Pence is running against him. Trump has finally been brought into court to answer for his actions in the lead-up to January 6th; Pence may take the stand to testify about what Trump asked him to do. If Trump was once convinced that Pence could save him from the ignominy of leaving the White House in defeat, he now seems to realize that Pence could help send him to jail. Soon after the indictment was made public, Trump posted on Truth Social that “Liddle’ Mike Pence” is “delusional” and has gone over to “the Dark Side.”

In a hearing on Friday, John Lauro, Trump’s lawyer in the January 6th case, cited Pence’s status as a rival candidate when arguing that Trump deserved leeway in what he could say about evidence in the case. The judge, Tanya Chutkan, disagreed, saying that Trump was still a criminal defendant bound by restrictions on intimidating and tampering with witnesses. That fight will continue.

The latest indictment is the second from the special counsel Jack Smith. It follows charges he brought in Florida related to Trump’s stashing of sensitive national-security documents at Mar-a-Lago; the former President is also facing a criminal indictment in New York, on charges related to hush money and to falsified business records. (Trump has pleaded not guilty in all cases.) And, this week, Fani Willis, the Fulton County, Georgia, district attorney, is expected to bring another set of charges, centered on an alleged attempt by Trump to overturn that state’s 2020 election results. But it is the January 6th case that has turned the focus onto Pence.

A section of Smith’s indictment, on Trump’s “Attempts to Enlist the Vice President” to change the election results, offers a seven-page catalogue of meetings, calls, and memos in which Trump “directly pressured” Pence. One revelation is that Pence kept contemporaneous notes of certain key meetings. Trump’s plan depended on inducing would-be Trump electors in various states to sign false certifications that they were the real electors, which Pence would then brandish at the joint session and declare either that Trump was the winner or that there was so much uncertainty that the count had to stop. (Willis appears to be focussing on the fake-electors scheme, as well.) In essence, Pence was being asked to endorse a stack of forgeries and then use them as pretext for a coup.

Yet, last Sunday, when Lauro made the rounds of the morning talk shows, he referred to Pence as “our best witness,” and claimed that his testimony would acquit Trump. He stuck to that position even as his interviewers expressed skepticism. On “Meet the Press,” after the host, Chuck Todd, played a clip from that morning of Pence saying, “The President specifically asked me, and his gaggle of crackpot lawyers asked me, to literally reject votes”—not exactly a line one would like to hear from one’s star witness—Lauro said that Pence was, in fact, “substantiating” Trump’s story. If so, that story doesn’t sound good for Trump.

Still, Lauro is right that Pence will be a complicated figure for both the prosecution and the defense. For one thing, he is a reluctant witness. He refused to appear before the House’s January 6th committee, and when Smith issued him a subpoena he fought it in court, and succeeded in somewhat limiting its scope. On “Face the Nation,” when asked whether Trump had ever admitted to him that he had lost, Pence said that he didn’t “know what was in his mind.” He continues to suggest that there was something not quite right about the 2020 election. Lauro emphasized that Pence had also encouraged members of Congress to contest various states’ electoral votes on January 6th. Thankfully, Pence stopped there.

Even after that day, though, Pence seemed to yearn for a reconciliation with Trump (and Trumpists). Only recently has he become open in his criticism. The question is whether the ways in which Pence abased himself in Trump’s efforts to hold on to power will make his testimony seem weaker or more credible. After all, he can’t be dismissed as someone who is speaking against Trump because he is a Democratic partisan. But neither side can be sure what kind of witness Pence will be.

If the Republican Party, or Pence, were different, he might be positioned to engineer a real split between those drawn to Trumpist proto-authoritarian populism and those who adhere to other conservative ideological strains. So far, he hasn’t managed it. At present, he is polling at just above five per cent, in a crowded Republican primary field, while Trump’s share is above fifty per cent. But that five per cent, along with Pence’s tally of small donors, is enough to qualify him to participate in the first Republican debate, on August 23rd.

There would be few more acute examples of the collision of the legal and the political calendars than Trump’s confronting his former Vice-President—and future witness against him—on the debate stage. Other candidates might want to try out a cross-examination, too. Then again, Trump has suggested that he might skip the debates; he doesn’t have to go to any of them. But he and Pence will still have a date in court. ♦