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Opinion If Pence won’t testify, he has no business running for president

Former vice president Mike Pence delivers remarks at St. Anselm College's New Hampshire Institute of Politics in Manchester, N.H., on Aug. 17. (Cj Gunther/EPA-EFE/Shutterstock)

Former vice president Mike Pence disingenuously said on Wednesday that he’d “consider” testifying before the House Jan. 6 select committee if asked to participate. Who’s he kidding?

The committee’s members have made it abundantly clear they want to talk to anyone with knowledge of the coup attempt. Pence — a target of the mob that President Donald Trump stirred up on Jan. 6, 2021 — would certainly qualify.

But it’s not up to Pence to “consider” whether he will testify. It’s up to the committee to decide whether his testimony would be useful. If so, it should promptly send Pence an invitation — or better yet, a subpoena.

Far too many Trump cronies (e.g., former White House chief of staff Mark Meadows, former communications staffer Dan Scavino) think that a congressional subpoena is a suggestion, not a legal mandate, or that they can pick and choose what questions to answer, a la former White House counsel Pat Cipollone.

Enough already. Pence, who apparently wants to present himself as a viable 2024 presidential contender who could faithfully uphold his oath, should be eager to share what he knows. That is what responsible and patriotic Americans with knowledge of the events surrounding Jan. 6 have done. If former Meadows aide Cassidy Hutchinson or Arizona House Speaker Rusty Bowers (R) can do their part to assist the committee’s investigation, surely Pence can as well.

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And certainly no one running for president should be willing to thwart a criminal investigation. If Pence cannot cooperate with law enforcement in their separate investigations, he fails the fundamental test of the presidency: putting public interest and defense of the Constitution ahead of personal or political concerns.

Pence seems to think that by virtue of his past service as vice president, his testimony is optional. “I would have to reflect on the unique role I was serving in as vice president,” he declared. “It would be unprecedented in history for a vice president to be summoned to testify on Capitol Hill.”

That might be because no other president has refused to peacefully transfer power or endangered the life of his vice president. Moreover, Pence is no longer vice president. (Does he think, as Trump seems to believe, that the benefits and privileges of office adhere to him indefinitely?)

Neither does the hobbyhorse of “executive privilege” excuse him from testifying. As Renato Mariotti, a former federal prosecutor, tells me, “Executive privilege could cover conversations between Pence and other executive branch officials, including Trump, but would not cover Pence’s own observations, views or beliefs. Also, there is a strong argument that any privilege here would be overcome by the need for Pence’s testimony or that the privilege has been waived by [President] Biden.”

Pence is in a unique situation because of the uniquely reprehensible conduct of his former boss. Norman Eisen, a fellow at the Brookings Institution who served as co-counsel for the House Judiciary Committee during Trump’s first impeachment, tells me it is “imperative” that Pence testifies, given his “unique proximity to and knowledge of the attempted coup.” He adds, “As we have seen with other White House officials who have complied with requests to testify or subpoenas, privilege concerns if any can be addressed on a question-by-question basis.” There is no “blanket constitutional or legal exemption” to a congressional subpoena for a vice president, Eisen says, so “it is time for Pence to step forward and share what he knows.”

Regardless of whether the committee asks for Pence’s testimony, the Justice Department must summon the former vice president before a grand jury if there is to be a complete investigation of Trump’s misconduct.

Attorney General Merrick Garland, while explaining his decision to execute a search warrant at Trump’s Mar-a-Lago residence, said last week, “Faithful adherence to the rule of law is the bedrock principle of the Justice Department and of our democracy.” He added, “Upholding the rule of law means applying the law evenly, without fear or favor. Under my watch, that is precisely what the Justice Department is doing.” That also means a percipient witness to alleged serious crimes must be questioned under oath, whether that person is a lowly White House staffer or the former vice president. Garland risks undermining his own standard if he gives an obviously critical witness a pass.

The Jan. 6 committee and the Justice Department should not let Pence slide by without getting his account under oath. His testimony is not only critical to the investigation but also to confirm that the judicial system should operate without fear or favor, even when a former high-level official is involved.