For all the frenzy over a possible indictment of Donald Trump in a New York hush money case, the ex-president’s gravest legal issues, which are deepening by the day, may lie elsewhere.
Three crushing legal blows against Trump and his lawyers in investigations conducted by special counsel Jack Smith threaten to expose with fresh clarity his conduct in the run up to the US Capitol insurrection and his hoarding of classified documents.
In an extraordinary development revealed on Tuesday, a federal judge opened the way to a former vice president testifying against the president he served. In a ruling still under seal, the judge said Mike Pence must appear before a grand jury over conversations he had with Trump leading up to January 6, 2021. Such an appearance would allow prosecutors to seek potentially damning evidence, under oath, about fierce pressure Trump imposed on Pence to thwart the transfer of power to President Joe Biden.
The ruling came days after another court decision against Trump and for the January 6 investigators, saying he could not block grand jury testimony from some of his administration’s top officials, including then-White House chief of staff Mark Meadows.
These rulings came amid another win for the special counsel last week when Trump’s lead defense attorney, Evan Corcoran, testified again to the grand jury after he was ordered to reappear by an appeals court. Corcoran could potentially have vital evidence related to whether Trump deliberately hid classified documents or sought to obstruct authorities trying to get them back.
Trump’s ‘greatest jeopardy’
Each development potentially peeled away another layer of protection from the former president, who has not been charged with a crime in any of the cases. Both probes being pursued by Smith are succeeding in overcoming Trump’s time-worn strategy of postponing accountability with spurious litigation and vast and questionable claims of executive and attorney-client privilege that nevertheless take time to litigate. And while any charges over January 6 could be complex and might require prosecutors to use rarely tested concepts, a potential obstruction charge in the documents case could be far easier to bring.
“It is interesting to me that there is this scrum over the New York case, but I really do believe that in particular, the Mar-a-Lago case, the potential obstruction of justice case, puts (Trump) in the greatest jeopardy right now,” said former federal Judge John Jones III, who is now president of Dickinson College in Pennsylvania.
It is impossible to know what is going on inside the grand jury or the special counsel’s case. But Corcoran was told by the court he could no longer withhold information about communications he had with Trump leading up to the FBI search of Mar-a-Lago last year. He was also ordered to turn over his attorney notes. Corcoran was in a perfect position to know how Trump was responding to government efforts to get documents back and could shed light on any intent to obstruct the federal government.
There is also a clear sense that the documents case may be approaching a decisive moment.
“I think there’s some pressure now on Justice to bring this to a conclusion. To me, based on the way it is shaping up, it is a dead bang obstruction of justice case,” Jones said, underscoring that a case against Trump might be made not just for the mishandling of classified material but for possible false statements to the government about such documents.
The latest adverse developments for Trump in the January 6 and Mar-a-Lago cases came with the ex-president still waiting in the investigation led by Manhattan District Attorney Alvin Bragg centering on a hush money payment to adult film star Stormy Daniels in 2016. Trump had wrongly predicted earlier this month that he’d be arrested last week and called for protests.
Sources familiar with the proceedings said that the grand jury hearing the case would not consider it again this week, adding fresh intrigue to the anticipation that has built after Trump’s initial statement. On Monday, in a possible sign that prosecutors were trying to solidify their case, the grand jury heard from David Pecker, the former head of the company that publishes the National Enquirer. He was a key player in negotiating the payment in an alleged scheme that previously landed Trump’s former lawyer, Michael Cohen, in jail.
On yet another legal front, a prosecutor in Fulton County, Georgia, said at the end of January that charging decisions were “imminent” in an investigation into his efforts to overturn Biden’s victory in the crucial swing state in November 2020. CNN reported last week that prosecutors are considering bringing racketeering and conspiracy charges.
Trump has vehemently denied wrongdoing in all the cases. And he has wriggled free of dicey legal and political predicaments before with an almost mythical capacity to evade accountability for behavior that would have doomed any conventional politician. But his potential vulnerability and the sheer breadth of investigations against him is brewing a moment of unprecedented stress for the country’s political and legal institutions.
Not only is Trump apparently in severe jeopardy of becoming the first former president to be indicted, but his campaign to return to the White House in 2024 – while potentially being criminally charged – raises the possibility of an extraordinary political uproar. Trump is already fanning the flames of a situation that would be guaranteed to exacerbate the country’s extreme political polarization. At a campaign rally in Texas last weekend, the ex-president folded various probes against him into a single false conceit: that the Biden administration is seeking to weaponize the justice system against him to steal the 2024 election.
Pence is considering his options
The big development on Monday concerned Pence, who is also mulling a 2024 White House bid.
Prosecutors appear to want the former vice president to flesh out testimony of some of his senior aides and White House officials about Trump’s pressure on him to block the certification of Biden’s 2020 victory. Pence insists he has nothing to hide. But his lawyers argued that his testimony should be limited by the Constitution’s Speech or Debate Clause because of his role as president of the Senate. The doctrine is supposed to protect the separation of powers, and Pence effectively argued that it barred the executive – including the Justice Department – from forcing him to speak before the grand jury about his congressional duty.
But in a sealed judgment that threaded a legal needle, Chief Judge James Boasberg of the US District Court in Washington, DC, found that Pence must testify to the grand jury about conversations he had with Trump in the run up to January 6, multiple sources familiar with the ruling said. But the judge also said Pence can still decline to answer certain questions related to his role on January 6, when his official role as president of the Senate was to preside over the certification of Biden’s election victory.
The ruling was a fascinating development for its multiple legal and constitutional implications. It’s unclear for now at least which exact questions Pence could decline to answer under oath.
On the face of it, this is a partial victory for Pence and a win for Smith – and a loss for Trump.
It could play into Pence’s political ambitions. As he considers a run for the GOP presidential nomination against Trump, he could use the cover of a court ruling to show up at a grand jury appearance many observers believe was inevitable but that GOP voters may find objectionable. Although, the former vice president has now broken so completely with his ex-boss – and by extension a large chunk of the GOP base – that he may also have a political interest in contributing to the investigation’s knowledge of Trump’s maneuvering before January 6.
But he could also blur the legal technicalities by arguing that he stood up to the Biden administration’s Justice Department – a potentially useful weapon in a GOP presidential debate. And he may have even clarified and expanded the scope of the office of the vice presidency in establishing new interpretations on the Speech or Debate Clause. The latter question would still need to be enshrined by eventual appeals court or Supreme Court consideration of Speech or Debate Clause cases to be considered definitive, however.
Pence said on Tuesday that he was considering his next steps, and there is no sign yet when he might testify to the grand jury.
“The requirements of my testimony going forward are a subject of our review right now, and I’ll have more to say about that in the days ahead,” Pence told Newsmax’s Greta Van Susteren.
The potential impact of Pence’s testimony is unknown. After all, some of Pence’s closest former aides have already testified to the grand jury. They also spoke to the House select committee on January 6 in the previous Congress in testimony that was later aired publicly. Pence declined to appear before that panel under the Democratic-led House.
The former vice president also said in his recently published book that he asked his general counsel for a briefing on the procedures of the Electoral Count Act after Trump, in a December 5, 2020, phone call, “mentioned challenging the election results in the House of Representatives for the first time.”
But after the special counsel’s latest victory, he will be keen to lock down Pence’s retelling for investigators, ahead of any potential indictment. And only Pence can give full details of any private conversations or calls with Trump. He might be able to provide fresh evidence about whether Trump was committing a crime by pressuring him to overturn the election, for instance.
Whatever happens, when Pence finally goes before the grand jury, he is likely to provoke the already boiling fury of Trump.