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‘It’s Clear He’s Going to Testify’: Pence Has Central Role in Trump’s Prosecution

6 minute read

Out of all the Republican presidential candidates, none may pose a greater threat to Donald Trump’s future than Mike Pence. That’s not because the former Vice President is mounting much of a challenge for the GOP nomination. He’s trailing Trump by nearly 50 points in the polls. It’s because Pence may be the most important witness in Special Counsel Jack Smith’s prosecution against Trump for trying to overturn the 2020 election.

In a four-count, 45-page indictment unsealed on Tuesday, federal prosecutors alleged that Trump knowingly spread lies of a stolen election and engaged in an illicit, multi-faceted effort to remain in power. A substantial portion of Smith’s case hinges on the former President’s pressure campaign against Pence leading up to Jan. 6, 2021, when a mob of rioters disrupted the Congressional certification of the Electoral College. 

In one of their phone calls in the days before the attack, Trump allegedly told Pence that he was “too honest” after his second-in-command refused to unilaterally reject the election results. In another, Pence called Trump on Christmas Day to wish him a happy holiday, but the President quickly turned the conversation to Jan. 6, pressing his Veep to nullify Joe Biden’s election victory. Prosecutors drew both scenes—which until now have not been part of the public record—from contemporaneous notes that Pence provided to the Special Counsel. 

The revelations reflect the unprecedented scenario revolving around Pence, who is not only running against his old boss for the 2024 GOP nomination, but serving as a central player in the prosecution against the President under whom he served. 

“It’s clear he’s going to testify,” Harry Litman, a former U.S. Attorney, tells TIME. “Pence is the most integral fact witness. He was the sitting Vice President of the United States. It's an extremely dramatic moment—I'd say even a historic one—for the former Vice President to take the stand. That will be a seismic moment in what’s already the most important prosecution in U.S. history.”

After a lengthy investigation, the Special Counsel brought four charges against Trump, including conspiracy to defraud the government, conspiracy against the right to vote, conspiracy to obstruct an official proceeding, and obstruction of an official proceeding. 

Shortly after the Jan. 6 indictment was announced on Tuesday, Pence differentiated himself from many other prominent Republicans, who were quick to characterize Trump’s latest legal setback as part of a “deep-state” conspiracy to prevent him from reclaiming the White House. “Today's indictment serves as an important reminder: anyone who puts himself over the Constitution should never be President of the United States,” Pence said in a statement.  “On Jan. 6, former President Trump demanded that I choose between him and the Constitution. I chose the Constitution and I always will.”

For months, Pence has said that Trump will be held accountable in the eyes of history for his role on Jan. 6. But he has not explicitly said whether he would testify against the former President who egged on his supporters who stormed the Capitol that day chanting “Hang Mike Pence.” The two have not spoken since Trump left office. Despite their falling out, Trump has told associates in recent weeks to hold their fire against Pence, according to multiple sources familiar with the matter. “He’s kind of left Mike Pence alone,” a source close to Trump tells TIME. “Even on the documents stuff, he was telling people to leave Mike Pence alone,” referring to the former Vice President having discovered classified materials in his Indiana home in January, which he turned over to the FBI. 

“I feel badly for Mike Pence, who is attracting no crowds, enthusiasm, or loyalty from people who, as a member of the Trump Administration, should be loving him,” Trump posted Wednesday on his social media platform Truth Social, adding “The V.P. had power that Mike didn’t understand.”

Trump is more offended by Ron DeSantis, the source says, who is running against him after Trump’s endorsement helped to secure his GOP nomination for Florida Governor five years ago. “With Pence, it’s more of a principles thing. Trump respects that he has some values to an extent. But he sees DeSantis as a power-grabbing, brazen, disloyal rat. I think that's the difference.”

Trump’s fiercest allies have cast Smith’s prosecution as the manifestation of a political witch hunt. Pence’s role in the indictment, they say, is part of a ploy to divide the GOP. “The whole Mike Pence strategy is to drive a wedge between Republicans,” Mike Davis, a Trump confidante who founded the conservative Article III Project, tells TIME. “It’s not illegal for President Trump to put pressure on his Vice President to not certify the election. Some people might think it’s boorish, but that doesn’t make it a felony.” Davis, who speaks to Trump regularly, also said that he doesn’t hold an ongoing personal animus against Pence. “I don’t think there’s any ill will between Trump and Pence. He sees Mike Pence as a boy scout, and Trump’s used to dealing with New York construction crews.”

The indictment is the latest in a long string of Trump’s legal woes. He’s also facing charges from a separate special counsel investigation by Smith alleging he hoarded national-security secrets and obstructed the government’s efforts to retrieve them. In New York, Manhattan District Attorney Alvin Bragg indicted Trump in April over allegations that he falsified business records to conceal hush-money payments to a porn star.

On Thursday, Trump is set to appear before U.S. District Judge Tanya S. Chutkan, a 2014 Obama appointee, in Washington, D.C. Smith’s prosecutors are expected to seek a speedy trial. That’s why some legal experts suspect the indictment listed six unnamed co-conspirators but did not indict any of them—hoping a lean indictment focused on Trump would have a better chance of making it to trial before the November 2024 election. Some also suspect that Smith will try to flip some of those alleged co-conspirators in the weeks to come. 

Yet legal experts believe that Pence’s testimony would carry more weight than most others. “There are witnesses in Mr. Trump's other cases that have real credibility issues,” says Anna Cominsky, a professor at New York Law School. “There are potential witnesses in this case that have credibility issues. Former Vice President Pence is certainly someone who comes across with a lot of credibility. If Pence were to testify, it would be much harder for the defense attorneys to attack his credibility.”

It’s the reason Pence poses more of a danger to Trump in a courtroom than on the campaign trail. “The biggest threat is Trump to himself,” Doug Jones, a former federal prosecutor and Democratic U.S. Senator, tells TIME. “It is and always has been, but obviously, he has put Mike Pence in a position where he will be a central character in any prosecution going forward. I don't think Mike Pence chose to be in that position. But he will take it and he will deal with it.”

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