Pence on the Stand

Plus: A new Bulwark/Lawfare collaboration.

(Photo by Mark Wilson/Getty Images)

Well, that was fast.

Mike Pence didn’t give his old boss a chance to appeal, delay, or otherwise obstruct. The day after the federal appeals court rejected Donald Trump’s efforts to block his testimony, Pence went before the grand jury and testified. He was there all day.

So, our timing is pretty good. We’ve just launched a new podcast feature — a collaboration with Lawfare — to provide coverage of all of the former president’s legal travails.

We’re calling it “The Trump Trials,” and it will run every Thursday.

Ben Wittes and I recorded our first episode shortly after he arrived in London after overnight flights from Phoenix, Arizona. He discusses the new collaboration in his newsletter, the invaluable Dog Shirt Daily:

Thursday afternoon, a few hours later, found me lying in bed in my hotel with wicked jet lag, having flown to London overnight from the Patriots & Pragmatists conference in the undisclosed location—which can now be disclosed as Phoenix, Arizona—recording a podcast with the estimable Charlie Sykes of the Bulwark Podcast.

The Bulwark Podcast is one of the very few podcasts I listen to daily, so I was touched and excited when Charlie asked me and Lawfare to partner with him to do a weekly Thursday feature on the Trials of Trump.

The podcast will feature the team at Lawfare that is covering the Trump trials in conversation with Charlie trying to make sense of events as they unfold. I hope you enjoy the first episode:

In this premiere episode, Ben and I discuss the Proud Boys trial in D.C.; the E. Jean Carroll civil suit; the delay in Fani Willis’s Georgia case; the pace of Jack Smith’s investigation; and of course, we speculated about what Pence might tell the grand jury.

Here’s a partial transcript of our discussion of Pence:

Charlie Sykes: Donald Trump has been on a losing streak. He tried to stop Mike Pence from testifying to the January 6 grand jury. The Court of Appeals in DC on Wednesday rejected Trump’s attempt to block Pence’s testimony before that grand jury. So not much of a surprise, but Donald Trump really doesn’t want Mike Pence to testify. Give me your sense of what Pence might say and why Trump was so adamant about trying to block him.

Ben Wittes: … He keeps losing because it's actually very clear law, since the Starr investigation in the DC Circuit, that you can't usefully assert an executive privilege claim in a situation like this. It's a tough question in front of Congress. It's not a tough question in front of a grand jury.

And so there was never much doubt what the DC Circuit would do with this question. Remember that Mike Pence himself had also asserted a Speech and Debate Clause privilege as the president of the Senate. Judge Boasberg ruled that couldn't prevent him from testifying, but that there were probably questions he couldn't be asked as a result of that...

He will not testify about things that happened that day while he was presiding as president of the Senate, and he won't testify as to other things that, you know, may involve legislative activity on his part.

But I think from the prosecutors’ point of view, the critical thing is whether he will testify about his interactions with Donald Trump in the days leading up to January 6. And I'm certain that that's what the prosecutors want to get from him. They will now have a chance to do that in front of the grand jury and we'll see how cooperative Mike Pence is and how aggressive he is about asserting that he doesn't have to answer questions, because, you know, among other things, he's the 51st senator.

Charlie Sykes: It's really a sign of how aggressive Jack Smith is being that he would have subpoenaed the former vice president.

Ben Wittes: It's more than that. It's not just a sign that he is being aggressive, though it is that. It's also a sign that he's almost done.

Charlie Sykes: Do you think so?

Ben Wittes: Yeah. Because you don't bring in Mike Pence, you don't bring in the vice president until the end of an investigation. One of the things you're trying to show is that Donald Trump meaningfully sought to impede the transition of power, and generally you work your way up the witness chain, not down.

And so you know, you start with the low-grade White House staffers, but recently they've heard from Mark Meadows, now they're hearing from Mike Pence. They're hearing from the very senior people, and that's something you're going to do toward the end of an investigation. So, I think the January 6 investigation, there are probably still some outstanding litigations, some of which we know about, some of which we don't know about, but I think they're really getting to the end.

I think they're also getting to the end of the Mar-a-Lago investigation. And you know, so whether that means we're weeks or a couple of months away from charging decisions, I don't know, but I don't think we'd be hearing from Mike Pence if we were in the middle of things.

You can listen to the whole thing here:

BONUS: Here’s the conversation Ben recorded at 5:30 a.m. with Roger Parloff and Brandi Buchman in Phoenix before jumping on his flights to London. It’s a detailed overview of the evidence presented in more than 60 days of the Proud Boys trial:

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The GOP Playbook

Keeping it classy: “Nikki Haley: Biden is likely to die within five years.”

Republican presidential candidate Nikki Haley said Wednesday that President Joe Biden, 80, is likely to die within five years and that his supporters would have to count on Vice President Kamala Harris if he were to win re-election next year.

“He announced that he’s running again in 2024, and I think that we can all be very clear and say with a matter of fact that if you vote for Joe Biden you really are counting on a President Harris, because the idea that he would make it until 86 years old is not something that I think is likely,” Haley, 51, said in an interview on Fox News.

But this is not a gaffe or an outlier.

As one of my colleagues recently remarked, the Republicans will run against Dead Joe Biden and Live Kamala Harris.

Expect it to be a major theme of the 2024 campaign. Count on it.

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Why Biden Might Lose

Republicans seem to be going through their usual stages of capitulation, while Democrats risk falling prey to 2016-style overconfidence. Naturally, Ruy Teixeira provides a sobering counterpoint along with his usual tough love.

He starts with the assumption that the GOP will nominate Trump and offers five (!) reasons why Biden might still lose. You probably don’t want to read this, but you should anyway:

1. Biden really is an extraordinarily weak candidate. His approval rating has been in the low 40’s seemingly forever. Right now it stands at a little under 43 percent in the 538 rolling average. Generally, presidents get pretty close to their approval rating in voting support. The last three incumbent presidents (W. Bush, Obama, Trump) got only 1-2 points higher support than their approval rating at the time of the election. This pattern would make Biden dead in the water if his low ‘40s approval rating continues to election day….

2. Trump may be a stronger opponent than Democrats expect. There’s no question that Trump has a lot of baggage, including his incessant dwelling on the “stolen” 2020 election, that should weaken him as an opponent. But consider some uncomfortable facts. Trump is a point ahead of Biden in the RealClearPolitics rolling average or just a point behind in a polling average reported by Nate Cohn. Yes, it is early but these results are not nothing…

3. Biden and the Democrats have not moved to the center on cultural issues. Biden and the Democrats seem to be operating under the questionable assumption that they don’t need to draw any line whatsoever against the cultural extremists in their own party. This calculation overlooks the fact that voters think Democrats and Republicans are equally too tolerant of extremist groups in their ranks…

4. Abortion may not be the silver bullet many Democrats assume it will be in 2024. There is a serious tendency for Democrats to overinterpret the results from 2022 and 2023 and map that overinterpretation onto a high turnout presidential election when many issues will be in play. It may well be a factor in Biden’s favor but the idea that it will override all other issues and deliver certain victory is wishful thinking. Even in 2022, many Democrats underperformed abortion referenda and general pro-choice sentiments, frequently by wide margins, indicating the limits of the issue…

5. There is a working-class sized hole in Biden’s re-elect strategy. That brings us to perhaps the biggest problem Biden may have matching up with Trump. Biden’s opening video and the general message from his nascent campaign is very heavy on democracy issues, abortion rights, and denouncing “MAGA extremists”. It is fair to say that this message will play best among the college-educated voters the campaign is clearly targeting…

You can read Teixeira’s whole disturbing analysis here.

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Quick Hits

1. MAGA Is Eating Its Own

Peter Wehner in the Atlantic:

Some of us have spent the better part of eight years warning about the incalculable damage that would be done to the United States, to its politics and culture, and to the Christian witness by those who embraced a Trumpian ethic, defined by cruelty, lawlessness, the shattering of norms and traditional boundaries, and an eagerness to annihilate truth and trust in institutions. Those warnings have been validated, those concerns vindicated. What happened on January 6 wasn’t an anomaly; it was an apotheosis...

The extremism, aggression, and lack of restraint in MAGA world are spreading rather than receding. They are becoming more rather than less indiscriminate. Those who are part of that movement, and certainly those who lead it, act as if they’re invincible, as if the rules don’t apply to them, as if they can say anything and get away with anything. That has certainly been true of Trump, and it is often true of those who have patterned themselves after Trump, which is to say, virtually the entire Republican Party.

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2. Lindsey Graham Wants a National Abortion Ban. Here’s What He Overlooks.

Jill Lawrence in today’s Bulwark:

The ban that Graham has proposed includes exceptions for cases of rape and incest (although adult victims must submit paperwork to prove they received medical treatment or counseling) and in cases where, “in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman.” There are no exceptions for major fetal abnormalities. There is no exception to preserve the pregnant woman’s health. And the bill explicitly forbids doctors from taking into account “psychological or emotional conditions.”

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