Opinion Mike Pence’s craven effort to appease MAGA points to a deeper conflict
Pence’s legal strategy will likely fail. But this saga points to something beyond mere legalisms: Pence is plagued by a tortured relationship to Jan. 6 that he can’t outrun, one that also illuminates the continuing hold of Trump’s insurrectionism on the GOP’s evangelical base, which remains a destructive force in our politics.
Pence insists he will contest the Justice Department’s subpoena by invoking the Constitution’s speech or debate clause. In his theory, Pence functioned as president of the Senate on Jan. 6, so the executive branch cannot compel him to appear in court without violating the separation of powers and protections that shield legislators’ speech.
But as legal experts Laurence H. Tribe and Dennis Aftergut argue, legal precedent dictates that members of Congress cannot evade testifying about potential crimes that don’t directly involve a legislative act. Pence would be testifying about Trump’s pressure on him to assume the power to delay the electoral count, which isn’t legislative activity.
What’s more, as conservative analyst Andrew C. McCarthy notes, even in that role Pence wasn’t functioning as a senator or a representative, but as an executive officer standing in as Senate president, so the clause shouldn’t apply. The conversations that apparently interest prosecutors occurred between Trump, Pence and others in their capacity as executive branch officials.
Even more notably, a longtime conservative ally of Pence, retired federal judge J. Michael Luttig, seems to oppose the former vice president’s stance. After McCarthy published his takedown, Luttig tweeted the link, describing it as “interesting.”
Luttig declined to comment for this article. But a person familiar with Luttig’s thinking told me he agrees with McCarthy’s legal analysis.
That’s significant. When Pence on Jan. 6 rejected Trump’s claim that he had the power to subvert the electoral count, Pence cited Luttig’s analysis. That means someone associated with Pence’s admirable stand now appears to agree that he has no legal grounds to refuse to testify about the lead-up to that day.
One might hope these respected conservatives would cause Pence to rethink. But he has clearly decided he is doomed in 2024 if he is overly associated with resisting Trump’s coup plot. And this points to deeper conflicts.
While Pence plainly wasn’t eager to rebuff Trump’s pressure, his ultimate stand was an act of real courage in defense of constitutional order. Pence’s public career is arguably defined by this act more than anything else.
Yet perversely, Pence cannot tout this as a positive because many GOP primary voters apparently see it as a betrayal of Trump. Pence’s esteem among Republicans plummeted sharply after his stand:
So this is something https://t.co/CfrhwNjmnL pic.twitter.com/SidaYWfgm5
— David Byler (@databyler) January 5, 2022
If Pence willingly testifies about Trump’s pressure on him, it would remind those voters of his apostasy. So Pence will fight the subpoena all the way — even though the rationale is so weak — hoping to get on the right side of this divide.
Yet Pence probably won’t be able to avoid testifying in the end. And it’s unlikely GOP voters will ever forget his treachery. The stain of placing the Constitution over Trump will prove indelible.
Pence’s tortured relationship to Jan. 6 runs deeper still. As David French argues, Jan. 6 highlighted a deep conflict among Christians that Pence had to navigate. On one side was a Christian nationalist vision that saw Jan. 6 as an apocalyptic stand, demanding the unbridled use of “power” to defeat the secular liberal enemy. Many Christian nationalists understood the stakes of Trump’s insurrection in exactly these terms.
On the other side, French notes, is a Christian vision of “justice," which Pence’s conduct exemplified. This involves “upholding the rule of law” as an act of “courage," explicitly understood as defying the “mob” when it demands gross abuses of worldly power.
Even if one doubts Pence’s purity, he clearly has tried to talk religious conservative voters into embracing his Christian understanding of Jan. 6. Pence recently disclosed that in its aftermath, he encouraged Trump to “pray” and call on Jesus to “help you through this,” in effect saying his resistance to Trump’s corrupt demands constituted the true Christian position.
But that’s unlikely to carry much weight. Large majorities of White evangelicals seem to embrace Trump’s conception of Jan. 6, believing he resisted an injustice on that day, according to Public Religion Research Institute data. As PRRI president Robert Jones told me, their view “is much more likely to align with Trump’s view of power and courage on Jan. 6 than with Pence’s.”
So Pence’s resistance to testifying will likely fail to realize his apparent political goals. In the end, many Republican voters will still remember him as Trump’s Judas. And his stonewalling will squander the good will his Jan. 6 stand engendered among everyone else.
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