Special Counsel Jack Smith, reportedly “ramping up” his investigations into Donald Trump’s various acts of political malfeasance, might unleash a torrent of information thanks to his last high-profile subpoena:  to former Vice President Mike Pence.  It’s not that I expect Pence to voluntarily spout volumes of information in his slow, droning tone.  On the contrary: I expect Pence to challenge the subpoena based on executive privilege, a suit I also expect Donald Trump to join.  

As the ladies on the #Sisters-In-Law podcast noted this week, Smith’s subpoena for Pence to testify before the Special Counsel’s grand jury was not only expected by the Pence team; it was likely hoped for, if not invited.  A so-called “friendly subpoena” to the grand jury gives Pence cover to provide testimony without having the political baggage of the former House committee investigations–testimony people close to Pence have hinted he wants to give to damage Trump’s political future. In pro forma theatre for Trump’s cabal, however, everyone will sue to block testimony based on executive privilege.  

Smith, I believe, sought out this challenge specifically from Pence.  And from what I understand of Jack Smith, he does not pick a fight he doesn’t know he can win.  Smith took on some daunting cases as a local and federal prosecutor and as a war crimes prosecutor at The Hague.  He knows how to construct complex cases, leveraging one move against another, weighing deals with witnesses to catch bigger fish, and undertaking risk-reward analysis every step of the way.  Smith issued the subpoena knowing he holds all the cards to getting executive privilege claims dismissed.

What cards?  Well, some are new, but some are 50 years old.  Smith’s brief as issued by Garland includes two specific investigations.  Along with Trump’s handling of classified documents, Smith is also investigating “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.”

We could argue about whether Trump’s actions fell under presidential powers in the first place:  attempting to undermine an election you lost because you’re a pussy ass bitch certainly seems more like a political rather than a governance issue.  But that point need not be argued.  Smith already has the winning hand on this deal as well.  

In October, a member of the Proud Boys pleaded guilty to a charge of seditious conspiracy.   In November, a jury found Stewart Rhodes and a number of Oath Keepers cohorts guilty of seditious conspiracy.  And currently in another seditious conspiracy trial, federal prosecutors are laying out how Trump’s comments fired up the group to undertake efforts to undermine the Constitution.  The courts have already concluded a crime took place and that Donald Trump was, at least, complicit with it:  an effort to stop a Constitutional function of government.

Now comes the 50-year-old part:  US v. Nixon.  In the case from the original -gate scandal, the Supreme Court ruled executive privilege cannot be used to either facilitate the commission of a crime or to cover up a crime.  Also in the same case, the Court ruled that if the only reason to claim executive privilege was confidentiality of counsel–not, for example, national security or confidential defense information–the claim of privilege “[,] sought for use in a criminal trial, is based solely on the generalized interest in confidentiality as distinguished from the situations whereat maybe based upon military secret or diplomatic secrets, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”  For those who don’t know, US v Nixon was a unanimous decision (with Rehnquist recused) against Nixon in 1974, leading to Nixon’s resignation.  Even today’s skewed Court would be hard pressed to find a rationale to overturn that Court’s ruling, though I’m sure a few of them would try.  

Armed with Nixon and multiple court decisions showing that a plot or plots to overturn the government did exist, combined with the documented actions by Trump to fulfill the plotters’ wishes, sufficient evidence is already on the record to justify the removal of privilege from any claims in a criminal trial.  

And that’s exactly what Smith wants, and he wants Pence to be the party in the case, with Trump’s approval, because there can be no closer confidante to the President than the Vice President, in a Constitutional sense.  They are the top two officers in the Executive Branch; their offices are inextricably and necessarily linked.

For the purposes of the grand jury investigation–by definition whose job it is to determine what, if any, crimes occurred–all evidence must be presented, for the sake of the pursuit of justice.  Nixon determined that the pursuit of justice by the Judicial branch–the very need to identify an unjust act by a public official–merits the abdication of the privilege.

With Pence’s claim of executive privilege knocked out by the Court based on Nixon, every other such claim also fails.  Those people with no political future (cough, cough Mark Meadows) or those who hold no fealty to Trump (Mike Pence) are free to testify.  Smith’s grand jury can subpoena Stephen Miller, John Eastman, Pat Cippilone, and every other executive branch tool that couldn’t or wouldn’t testify because of potential executive privilege claims.

“But it doesn’t stop there!” I declare in my best Ron Popeil voice.  (Look him up, youngsters.)  That same legal rationale holds for Congress’s advice and consent rule, with also cannot be used to cover up the commission of a crime.  So look for Jim Jordan, Matt Gaetz, Marjorie Taylor Greene, Paul Gosar, Ted Cruz and Josh Hawley to start hitting the “activist anti-Trump Supreme Court” spiel on Fox shortly.

Smith may open up a Hoover Dam of information coming from sources who previously claimed fealty to the man who sat in the Oval Office, not to the office itself.  As such, he only needs enough information to indict the accused to make a historic (and historical) impact; he then needs to present enough to convict.  Let history discover the details so that justice can be served quickly.