The US justice department has asked Mike Pence to testify in the criminal investigation into Donald Trump’s efforts to overturn the 2020 election results, according to a person familiar with the matter.
The request came before the attorney general, Merrick Garland, appointed a special counsel last week to oversee inquiries examining Trump, which are focused on two areas: potential mishandling of national security documents, and the January 6 Capitol attack.
Pence is considering testifying because unlike the congressional investigation, which he has panned, the New York Times earlier reported, the department wants him to appear before a federal grand jury, and could compel his cooperation with a subpoena.
Even if Pence is willing to testify, however, the matter could be further complicated should Trump attempt to block Pence’s testimony by asserting executive privilege – potentially prompting months of legal wrangling over what Pence is allowed to divulge.
So far, Trump’s lawyers appear to have had only limited success blocking testimony from Pence’s aides: his former chief of staff Marc Short and former legal counsel Greg Jacob appeared before a federal grand jury in Washington in July.
Moments that federal prosecutors would be likely to ask Pence about include a phone call between Trump and Pence at 11.20am ET on the morning of the Capitol attack, when Trump attempted to bully Pence into commandeering and delaying the ceremonial certification of Biden’s election win in Congress.
Trump’s words and the gist of the call were revealed when Oval Office aides described it to the House January 6 select committee. What Pence said in response remains unclear.
Both Short and Jacob, who also testified to the select committee, told investigators they did not know what Pence had said because he had walked out of the room to take the call; it was his standard practice not to brief others on his conversations with Trump.
After the call, Pence went to the Capitol and said in a statement distributed through his office that he would not carry out Trump’s wishes. He proceeded to certify Biden’s win as Trump supporters and far-right extremist groups such as the Proud Boys stormed the Capitol.
The former vice-president could also shed light on Trump’s intent and overt participation in the effort to overturn the 2020 election results, as well as whether Trump was warned those efforts were illegal, which would be critical for prosecutors as they weigh whether to issue charges.
At issue is the concept of willful blindness – and whether Trump continued to pursue strategies that he was warned could violate the law.
Emmet Flood, Pence’s lawyer, did not respond to a request for comment.
A person close to Trump suggested it was too soon to know whether Trump would assert executive privilege given Pence had not yet agreed to cooperate. Pence did say in an interview with CBS News last week that he would not cooperate in the select committee’s investigation into the Capitol attack.
“Congress has no right to my testimony on separation of powers under the constitution,” Pence said. “And I believe it will establish a terrible precedent for the Congress to summon a vice-president of the United States to speak about deliberations that took place at the White House.”
On Sunday, Pence was asked on NBC if he thought Trump had committed a crime in connection with the events of January 6, when some Trump supporters who attacked the Capitol chanted “hang Mike Pence”, to which he replied: “I don’t know if it is criminal to listen to bad advice from lawyers.”
Pence is eyeing a presidential run for which he appears to be pursuing a balancing act, seeking to distance himself from Trump while appealing to Republican voters.
His new memoir, So Help Me God, which deals in detail with his version of events during his time at Trump’s side, includes an extensive account of Pence’s role in, and views of, Trump’s attempts to stay in office.
Trump, he writes, said he was “too honest” to take part in a plot based on claims of widespread electoral fraud. He also says Republicans were right to lodge objections to results in key states, as it “meant we would have a substantive debate”.
But the former vice-president also made clear that he views Trump as responsible for the Capitol attack. In a recent interview with ABC News concerning January 6, he said Trump’s words and actions “angered me”.
“But I turned to my daughter who was standing nearby. And I said, ‘It doesn’t take courage to break the law. It takes courage to uphold the law.’ The president’s words were reckless. It’s clear he decided to be part of the problem,” Pence said.