By Perry Stein, The Washington Post (c) 2024
The federal election interference indictment against Donald Trump offers example after example of the then-president allegedly trying to pressure his vice president, Mike Pence, to help him overturn the 2020 election results.
There was the Dec. 25 phone call when Pence called Trump to wish him a Merry Christmas, and Trump veered into talk about the election results. On New Year’s Day, Trump called Pence, allegedly berating him for being “too honest” when it came to the power to block Joe Biden’s election victory. Two days later, prosecutors allege, Trump told Pence that he had clear authority as president of the Senate to block the election results.
None of those conversations, according to Trump’s attorneys, should be allowed as evidence in the criminal case.
The Supreme Court this summer broadened the definition of presidential immunity, ruling that presidents are generally immune from criminal prosecution for “official acts” but may still be prosecuted for unofficial acts. The high court’s ruling did not offer a clear line between the two.
At a hearing this month, one of Trump’s attorneys told Judge Tanya S. Chutkan – who is overseeing the D.C. case – that prosecutors erred when they included conversations between Trump and Pence in their newly revised indictment, which prosecutors refiled to address the new parameters on presidential immunity set by the court.
The attorney, John Lauro, said Chutkan should rule that conversations between a president and his vice president are official acts that cannot be prosecuted. And without Pence, the defense attorney argued, the indictment against Trump would be too weak to go to trial and should be dismissed.
“If Your Honor decides that that is immune, then the whole indictment craters,” Lauro warned at the hearing, the first in the case since the Supreme Court’s decision.
Special counsel Jack Smith is expected by Thursday to file his legal reasoning to Chutkan for why the revised indictment adheres to the justices’ ruling. The filing, parts of which will initially be under seal, could be the first time Smith explains why Trump’s conversations with Pence are not protected by the Supreme Court’s definition of presidential immunity.
Smith removed pages of evidence from his original Trump indictment after the Supreme Court issued its immunity ruling, including all conversations that Trump had with his Justice Department after the 2020 election – discussions the justices specifically said were official acts and off-limits.
But 36 pages of allegations remain. There’s evidence of Trump speaking to state officials to try to persuade them of fraud in their states, claiming that he won the election, not Biden. He allegedly worked with co-conspirators to concoct a fake elector scheme that would get key states to cast their votes for Trump instead of Biden. There’s also examples of people close to Trump allegedly telling him that Biden rightfully won the election – and then Trump still spewing lies that he got more votes.
And there’s the allegations that Trump spoke to Pence on multiple occasions, urging him to use his role as president of the Senate to block the certification of the 2020 election results on Jan. 6, 2021.
“The Vice President pushed, telling the Defendant, as the Vice President already had in previous conversations, ‘You know I don’t think I have the authority to change the outcome,’” the indictment says about the Christmas Day phone call.
On another occasion, prosecutors say, Trump told Pence that he had “the absolute right to reject electoral votes and the ability to overturn the election.”
Pence replied, according to the indictment, that he did not have that right.
Legal experts said many of Smith’s decisions in the superseding indictment seem clear-cut. For example, a president’s job duties do not entail talking to state officials about election results, so it makes sense that Smith would conclude Trump can be prosecuted for talking to state officials and allegedly crafting a fake elector scheme.
But a president’s duties do include talking to his vice president. For that reason, Smith’s riskiest move in the revised superseding indictment was to include Trump’s conversations with Pence, legal experts say.
In arguing why these conversations should be allowed as part of the case, some legal experts said, Smith may point out that the president’s role in the executive branch does not include the certification of election results.
In its decision, the Supreme Court seemed skeptical that conversations with Pence should be allowed in the case but acknowledged that discussions with the vice president in his role as president of the Senate could be an exception.
“Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” the ruling read. “The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch. ”
Whatever Chutkan decides will almost certainly be appealed, with the Supreme Court probably having the final say – sometime next year or the year after – on what can be prosecuted.
Legal experts said that even if the Pence conversations are ruled off-limits, there are enough other allegations in the indictment centered on unofficial acts for the case to survive. But they cautioned that losing the vice-presidential conversations would weaken the prosecutors’ argument that Trump broke the law when he attempted to thwart the election results.
“Would it be legally sufficient without Pence? The answer is yes,” said Daniel Richman, professor at Columbia Law School. “The next and harder question is, would it tell a powerful and persuasive story of Trump’s efforts. The answer is, I think, yes – but that gets more speculative.”
The Supreme Court said that not only can a president not be prosecuted for official acts, but that those official acts cannot be introduced as evidence at trial. This means that if the courts decide that Pence must be struck from the indictment, any mention of the conversations would be barred from trial. Prosecutors probably would be unable to call Pence and his aides as witnesses.
Stephen Gillers, law professor at New York University Law School, agreed with Richman that there is ample evidence in the indictment to try Trump without the Pence conversations.
“You do not need anything from Pence or anything from Trump’s communication with Pence to prove the false electors or the failure to call off the horde at the U.S. Capitol” on Jan. 6, Gillers said. “You don’t need Pence for that.”
Chutkan made clear at the September hearing that she believes the Supreme Court left the Pence conversations as an open question for her to answer. “One of the things I have to decide is whether, based on facts presented to me by the government, those conversations, those contacts, are somehow outside of [Trump’s] official duties,” the judge said then.
The Supreme Court’s ruling said presidents should be immune from criminal prosecution to protect the presidency. If a president is fearful of prosecution, for example, it could make him fearful to to make tough decisions or have private conversations with his aides.
But Giller said prosecuting Trump for his conversations with Pence would not undermine the presidency, since the interactions between the two men that Smith laid out in the indictment have nothing to do with the executive branch running the government.
“We do not have to worry that permitting that to happen will limit the president from running the government,” Gillers said. “Trump’s argument is that it’s too risky – we want a president and vice president to talk without fear of prosecution. But it will not have an effect of intimidating future presidents from having candid conversations with their vice presidents.”