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Judge is expected to rule Vice President Pence must testify in Jan. 6 attack probe

MICHEL MARTIN, HOST:

Former Vice President Mike Pence will have to testify to a grand jury in the Justice Department's ongoing probe of the January 6 attack. That's the ruling of a federal judge, according to multiple media reports. Pence must testify about conversations he had with former President Trump leading up to the attack on the Capitol. But in the ruling, which remained sealed, the judge reportedly also said Pence can decline questions related to January 6 itself. So what does this mean for the DOJ's investigation? Joining us now to help us understand this is former federal and state prosecutor Elie Honig.

Mr. Honig, welcome. Good morning. Thanks for joining us.

ELIE HONIG: Good to be with you. This is a fascinating story, a first in some ways. So happy to talk to you about it.

MARTIN: Well, thanks. So can you help me understand something? Without knowing the exact wording of the ruling, which remains sealed, as we said, can you clear this up? What is the judge saying Pence must talk about? And what is he saying he can refuse to talk about?

HONIG: So it may help understand that if we look at the legal arguments that were made here. So the Justice Department special counsel, Jack Smith, subpoenaed Mike Pence for his testimony. There were actually two objections that were raised. Donald Trump objected sort of from the outside. He's not a party to this subpoena. But he came in and said, no, I don't want my former vice president testifying, on the basis of executive privilege, meaning this was a conversation between me and him in office. It shouldn't come out. The court rejected that. And courts will almost always reject that in the context of a criminal grand jury subpoena, which this is.

Separately, Mike Pence himself argued this sort of obscure constitutional provision called the Speech or Debate Clause, and that says that members of Congress cannot be subpoenaed by an outside entity about anything to do with their legislative work. Mike Pence said, well, as vice president, I was the president of the Senate. You know, the vice president casts the tie-breaking vote, presides over things like counting the electoral ballots. And the court actually said, yes, you count under the Speech and Debate Clause, and as a result of that, you don't have to answer questions about what you did in your job as Senate president - so standing up there on that dais, counting up the vote.

So the way I read it, the way I understand it is Pence can be questioned about essentially everything leading up to the actual day of January 6 and perhaps even some of the activities on January 6, but not, what did you do when you were standing up there on the dais and it came down time for you to count up the electoral votes? But all the lead-up, all the meetings with Trump leading up, I think, are in play here.

MARTIN: How big of a deal is this reported ruling?

HONIG: Well, it's a huge deal for prosecutors because now they get to sit there and bring Mike Pence in under oath in front of a grand jury, in front of 23 civilians, and ask him questions. And he has to answer under penalty of perjury, again, with that one limitation. But if I'm a prosecutor here, I would want to know all the meetings that he had with Donald Trump. And we know - Mike Pence has spoken about and written about several crucial meetings that he had with Trump in the days leading up to January 6.

I would want more depth and more detail than he said in his book or he said publicly. But I would want to know specifically, did Donald Trump pressure you? What exactly did Trump say to you? Did Trump acknowledge that he knew he lost the election? Did he say something else? Did he threaten you in any way? I would want to go through all of that. What advice were you getting from your people? I think that's crucial to Jack Smith, the special counsel's, investigation of January 6.

MARTIN: Realistically, though, how much more do prosecutors expect to learn? I mean, the man wrote a 500-plus-page memoir, as you just alluded to. Is there really more to find out? Is it possible that there isn't more to find out?

HONIG: It's a great question because not only did Mike Pence write his book and not only has he spoken about some of this stuff publicly, but many of his aides have testified, including his chief of staff, Marc Short. But the answer is twofold. First of all, as a prosecutor, you need Mike Pence's testimony on record, in front of the grand jury, under oath. You need to - if you're going to indict or use that information in any way, you can't just read his book; you have to hear it from the actual witness.

You also want to know what he might say defensively, as a prosecutor. What if he says something harmful to your case, helpful to Donald Trump? You want to know that in advance. The other thing is, as a prosecutor, you want to probe. You don't want to just take his book, as he's fashioned it, at face value. You want to be able to follow up and dig in and perhaps challenge that testimony. So there may not be any shocking new revelations. There may be. But as a prosecutor, you absolutely want him under oath, in front of a grand jury.

MARTIN: And forgive me if I'm asking you to speculate, but is it possible that he might plead the Fifth?

HONIG: It is legally and constitutionally possible Mike Pence, like any person, can claim that his testimony might be used to incriminate him. I'm not sure Mike Pence has any actual basis for that, unlike some of the other players. I don't know that Mike Pence did anything that we know about publicly that might be criminal. But if he did do that, then prosecutors actually have a countermove available where they can immunize somebody who takes the Fifth - meaning, OK, you've taken the Fifth; we're not going to use your testimony against you, but now you have to testify, and we get to use your testimony in the trial of somebody else. If that happens, he has to testify. You don't have an option. Even if you don't want immunity, if you get immunized, you have to testify.

MARTIN: That is former federal prosecutor Elie Honig. Elie, thanks so much for talking to us today.

HONIG: Thanks so much. Transcript provided by NPR, Copyright NPR.