Geoff: Former vice president
Mike pence is at the center of
two doj investigations this
week.
The FBI found one additional
classified document during a
search of his Indiana home
today, after a small number were
discovered last month.
And yesterday, reports surfaced
that pence was subpoenaed by the
special counsel investigating
former president trump's efforts
to hold on to power.
That makes the former vice
president the highest-ranking
official so far to be called on
for information about January 6.
Neal katyal served as the acting
solicitor general in the Obama
administration.
He joins us now.
It is great to see you.
Question is this, with the
special counsel jack Smith take
this extraordinary step of
issuing a criminal subpoena to
the former vice president unless
he was very serious about
prosecuting Donald Trump?
Neal: I don't think we could say
it is about seriousness of
prosecuting Donald Trump.
It does show a seriousness in
the investigation.
So, it is a pretty rare thing to
have a subpoena of a government
official, let alone someone like
the former vice president.
I think there have been three
subpoenas of presidents, Thomas
Jefferson back in the early
1800s, Richard Nixon during
watergate, then Bill Clinton
during the Whitewater
investigation.
I am not sure any subpoenas of
vice presidents.
We don't know enough about why
jack Smith was subpoenaing
pence.
We can guess a good chunk of it
has to do with the fact that
pence was the kind of fulcrum
point for the pressure Donald
Trump and others exerted to try
to throw out the election
results culminating on January
6.
Geoff: Mike pence could
challenge this under executive
privilege.
So too could Donald Trump.
How could those claims hold up
under scrutiny, including for
former vice president Mike
pence, who has written a book,
given interviews, written a
detailed op-ed for the wall
Street journal in November about
the events around January 6?
Neal: Any assertion of executive
privilege to block telling the
truth will fall on its face.
It will not be successful.
That is over a few reasons.
One, there has already been a
waiver of executive privilege by
former vice president pence
because he has written and
talked about this extensively.
Second, the U.S. Supreme court
has said that executive
privilege really lies in the
hands of the incumbent
president.
That is Joe Biden, not a former
president.
Geoff: How does this special
counsel navigate this sensitive
political territory, given that
Donald Trump is running for
reelection and vice
pence might announce he is
running too?
Neal: I think the navigation on
this is quite easy.
It is the guiding principle that
no person is above the law.
That is what our country was
founded on.
It is like Thomas Payne's common
sense.
Just because you are running for
office, you don't get some sort
of get out of jail free card.
It is the case that the justice
department has opined twice that
if you are a sitting president
you can't be indicted.
I think that is wrong.
But that only goes so far as a
sitting president, and that is
why Donald Trump skated on the
molar investigation because bill
Barr decided you cannot indict a
sitting president.
But it could be the law that you
can indict somebody while there
are president, and you can
indict them after if they
announce they are running again
for office.
Geoff: As we mentioned, the FBI
today discovered an additional
classified document at Mike
pence's Indiana home during a
voluntary five hour search of
the home.
That is what an advisor told me
earlier today.
Is this what we can expect
moving forward, when the doj
encounters high-ranking
politicians, former officials
who have classified documents
where they shouldn't be?
Neal: Correspondent: As someone
who was the former national
security advisor, I find it very
dispiriting that anybody,
whether it is vice president
pence or president Biden or
Donald Trump, is bringing any
classified information home.
It is an obvious problem.
But what pence did does not
appear criminal in the same way
as what Donald Trump is alleged
to have done.
With pence, it seems very
inadvertent, and he right away
cold the FBI through his lawyers
and allowed them to search the
home.
It took a while for that search
to happen, but it does look like
cooperation existed there.
Whereas with trump, he denied
and lied about having those
documents.
Geoff: Thanks as always for your
insights.
We appreciate it.
Neal: Thanks so much.
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