Maggie Haberman Claims Asking a Witness to Repeat What He Said in Print Is “Most Aggressive” Move Yet

Exactly three months ago, I noted how some journalists were sowing false drama over whether DOJ would subpoena Mike Pence, given that he wrote up key details about January 6 in the WSJ (and his book).

For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.

That post preceded, by almost two weeks, a 1,600-word piece from Maggie and Mike, squawking about how unprecedented it would be.

The effort to seek an interview with Mr. Pence puts both the department and the former vice president in uncharted territory.

For the record, it is not unprecedented for a Vice President to appear before a grand jury: Dick Cheney was interviewed by Pat Fitzgerald in what was treated as a grand jury appearance (though it was in Jackson Hole); he did so while he was still VP.

In that November piece, Maggie and Mike allowed Pence to make bullshit claims about profound separation-of-powers issues, even though they noted Pence already wrote it up.

However, in interviews for the release of his new book, “So Help Me God,” Mr. Pence has been more emphatic in his opposition to providing testimony to the House committee, asserting that “Congress has no right to my testimony” about what he witnessed.

“There’s profound separation-of-powers issues,” Mr. Pence told The New York Times in an interview. “And it would be a terrible precedent.”


Mr. Pence has written in detail in his book about Mr. Trump’s efforts to stay in power and the pressure campaign he imposed on his vice president beginning in December 2020.

Maggie continues the hype in her story about the subpoena, with Glenn Thrush, from yesterday, claiming the mere act of asking a witness to repeat for a grand jury claims he already made in print is an aggressive act.

The move by the Justice Department sets up a likely clash over executive privilege, which Mr. Trump has previously used to try to slow, delay and block testimony from former administration officials in various investigations into his conduct.

The existence of the subpoena was reported earlier by ABC News.

It was not immediately clear when the special counsel, Jack Smith, sought Mr. Pence’s testimony. The move is among the most aggressive yet by Mr. Smith in his wide-ranging investigation into Mr. Trump’s role in seeking to overturn the outcome of the 2020 election. He is also overseeing a parallel inquiry into Mr. Trump’s handling of classified documents.

It’s not until the 16th paragraph before Maggie reveals that Pence wrote all this up in his book — which is nine paragraphs after NYT reveals that talks about voluntary testimony broke down.

Mr. Pence’s team held discussions with the Justice Department about a voluntary interview, according to the person familiar with the matter, but those talks were at an impasse, leading Mr. Smith to seek the subpoena.


Mr. Pence described some of his ordeal in his recently published book, “So Help Me God.”

When a politician resists saying under oath what he has said in a book, you start the story with that fact. And if a politician has already said something in print, then stop pretending it’s really aggressive to expect him to say that to a grand jury.

This story should be about why Mike Pence is resisting repeating, under oath, claims he made as part of a presidential run.

61 replies
  1. Jose Casta says:

    If it’s not in writing, it does not exist. That is the legal standing for any appeal evidence to submit. It cannot be fabricated or be made as needed.

    • bmaz says:

      That is a completely impertinent comment to the content of the post. Appeals are not the issue at all. Secondly, appeals consider all evidence on the trial record, not just that “in writing”, and trust me there is often a lot not in writing.

      Welcome to Emptyweel, but don’t bring bad content like this here. – bmaz

      • James Wimberley says:

        Odd use of “impertinent”, which usually means “disrespectful, sassy”. I take it that “pertinent” can do with an antonym, but “irrelevant” does the job.

        • bmaz says:

          You have anything substantive and helpful to contribute, or just come to be a common grammar scold? From you brief comment history, looks like it is a 50/50 proposition with you.

    • earlofhuntingdon says:

      You’re not much of a fan of witness testimony, then. And is it legal “standing” or standard. Very different things.

      An obviously important issue is whether Pence would say the same things under oath that he said in print. If not, he’s a liar, which a lot of people know already. But it would be interesting to note which lies he tries to protect and who might benefit from it.

      Another thing that seems clear is that, politically, he’s chosen not to volunteer anything against Trump. He has to be forced into cooperating with federal law enforcement. A startling position for a recently unemployed former Vice President of the United States.

      • Rugger_9 says:

        There was some speculation on the Web that the subpoena provides cover for Pence to testify while blunting the effects of being disloyal to Individual-1, i.e. the ‘see, they forced me’ defense.

        That policy (if the scuttlebutt is on the mark) makes some fairly invalid assumptions, starting with whether the MAGA horde that Pence needs for success will acknowledge (much less comprehend) the distinction. Also, would Pence be able to take the Fifth or otherwise dodge questions when he’s already written about it in a book? We’d likely never find out unless charges are brought.

        Being under oath is ostensibly a big deal to a Bible thumper like Pence, writing a commercial book is not. Then again, some of the Dominionists believe that once they are ‘saved’ they can sin no more.

        • PJB says:

          That is what you would ordinarily think and is why sometimes recipients want to receive a subpoena. But, it seems to me Pence truly does not want to be seen to have incriminated Trump (even if he wishes Trump would go down one way or another) whether pursuant to subpoena or otherwise. He’s running for President and feels he cannot afford to alienate the MAGA base. That’s what they’re all scared of.

          • Astrid says:

            I’m of the opinion that the MAGA base would never transfer to Pence. Rump painted Pence as being the fall guy. They believe all the lies he spews- so Pence’s candidacy is a no-go from the start. It would only further fracture the party’s vote. Evangelists may fall with him, but the angry troglodytes wanted to see him suspended from a gibbet.

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          • gertibird says:

            It could be Pence is just angling to be vp again whichever Republican wins the presidential nomination. Many maga’s are very religious.

        • Joeff53 says:

          I imagine he will follow the Trump playbook and appeal till the cows come home. If he doesn’t he’ll be said to have caved.

          • bmaz says:

            What do you base that on? It is absolutely legitimate to make a trial court adjudicate privilege issues as to grand jury questions. A witness would be stupid to not do that.

      • earlofhuntingdon says:

        I think loyalty is his stock-in-trade, and an essential part of how he sees himself. It’s also key to his political marketing strategy. Inherent in all that is tribal loyalty. One never incriminates a fellow member of the tribe, only its opponents. It’s a perverse belief: deeply cynical, hypocritical, self-serving, and anti-democratic. It ought to get more coverage.

  2. harpie says:

    On Twitter, Marcy responds to Hugo Lowell, who said:

    […] but also notable what he mostly left out, including details about the Dec. 21 WH meeting with Trump and GOP members about plans for stopping certification

    4:15 AM · Feb 10, 2023

    The story should be “Why is Pence refusing to say under oath what he said in his book,” but this is really important insight.

    He may well be resisting because there are things that make THE PARTY look bad. Or, frankly, show that Pence was playing along for a while.

    I think that Marcy and Lowell are on to something here.

    I’d like to mention the names Mark PAOLETTA and Paul TELLER here, for now.

    • Desider says:

      What was Barr doing Dec 21, since his resignation was officially Dec 23, two weeks before Jan 6.
      I hope Pence gives enough info to require *that* subpoena (under oath).

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      • Desidero says:

        [yes, it pasted in weird, couldn’t change during edit w/o deleting & starting over. This time did fine.
        Updated/reverted username for your 8 char min]

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  3. PeteT0323 says:

    If only Nicole Wallace could get her hubby Mike and Marcy on her show…I might as well ask her – not that I am anyone who might prevail in said quest.

  4. darkwinter says:

    oh, I’ll take a big dollop of ‘party might look bad’ and a steady pour of ‘Pence is simply a liar’. stir that all up in a big ole pot of Marcy Wheeler take down on a poorly written story by MH and I am again a happy camper, lol.
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  5. Rwood0808 says:

    I’m seeing quite a few comments around the interweb that this is the “last step” before Smith takes some action. Not sure I agree as so far I feel this has moved at the speed of smell and lawyers always seem to have “just one more thing” to do first. Still, I haven’t seen any valid arguments to the contrary.

    After grilling Pence, what’s left? If nothing, the next question is who will get to trump first, Smith, or Willis?

    • PJB says:

      This news is interesting to me. The conventional wisdom from the tv lawyer pundits (I know, don’t listen to them) is that Garland was very slow off the dime in investigating 1/6 and so Smith had alot of spade work still ahead of him before he could be ready for charging decisions. But, this does seem like a move you would take after you have investigated everything surrounding the Trump/Pence communications. Something, from my limited federal criminal investigative experience, that seems like a late in the investigation action.

      I wonder how the smart hosts of this site see it.

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  6. jecojeco says:

    After two years, it’s time to ditch the Alphone and Gaston politesse and cut to the chase. Pence has several reasons to at least appear to oppose speaking honestly about the events leading up to Jan6 and a GJ subpoena gives him that cover. The truth will set Mike free.

    But far more importantly it brings us closer to long delayed justice for those impacted by Jan6, which includes every American who wants his vote honestly counted.

    • Doctor My Eyes says:

      There is little reason to think there is an honorable man trapped in Pence’s sleazy body and much reason to think that what you see is what you get. Pence continues to openly call the investigation into Trump’s ties to Russia a hoax based on FBI impropriety and states openly that holding Trump to account in a court of law would be “troubling”. Pence’s appearing before a GJ, heaving a sigh of relief, dropping his tense shoulders, and finally setting the record straight is pure fantasy.

  7. Peterr says:

    Perhaps issuing a subpoena to Pence’s publisher and/or editor might make Pence realize how stupid fighting this subpoena would be.

    Q: When you were in discussions with VP Pence’s to publish what became his book, did you discuss fact checking with him?
    A: Yes.
    Q: Did he agree that everything he was going to include was factually accurate?
    A: Yes.
    Q: In your fact-checking, did you come across something inaccurate and yet allow the book to go ahead without correcting it?
    A: No.
    Q: In your discussions with VP Pence, as he was reviewing the galleys before the book went to press, did he ever say “Wait a minute – I can’t talk about all this stuff! We have to stop the presses and cancel the book because it is covered by executive privilege.”
    A: No.
    Q: Roughly speaking, what were the sales of the book?
    A: (Gives number)
    Q: So it is fair to say that he’s told this story to a *lot* of people?
    A: Yes.
    Q: People who are not the President of the United States?
    A: Well, yes, unless you believe that only Donald Trump and Joe Biden bought all those books.

    • PieIsDamnGood says:

      This must be an issue that comes up regularly. Could anyone enlighten me on common strategies to get someone’s out of court statements entered as evidence when they’re an uncooperative (or minimally cooperative) witness?

      Is it still hearsay when you can point to a book and say “here read what he said”?

        • Just Some Guy says:

          There’s been quite a few January 6th defendants who have made out-of-court, after-the-fact statements that don’t square with their pleas. Other than the cases of Baked Alaska and Derrick Evans (the West Virginia legislator), I don’t think there’s been nearly enough press on this issue. Not sure what’s going on with federal prosecutors and judges on this, either. I don’t imagine either would be pleased.

  8. BobBobCon says:

    So two of Carolyn Ryan’s top hires, Haberman and Thrush, are facilitating a limited hangout?

    I think it’s interesting that this is their reaction to getting scooped by ABC, which broke the news on the subpoena and stressed that this was the result of negotiations between DOJ and Pence.

    Haberman and Thrush’s only actual news addition to the story after getting beaten by ABC is the wrinkle that Pence may not be as cooperative as ABC suggests.

    The Times has long been a conduit for Marc Short, Pence’s former Chief of Staff. Short was obviously the main source for an earlier Schmidt article trying to downplay the odds of Pence cooperating, and if he’s not driving Haberman and Thrush’s effort to push back against ABC’s scoop, he or his cohort are probably a part of it.

    MW’s comment that her “post preceded, by almost two weeks, a 1,600-word piece from Maggie and Mike, squawking about how unprecedented it would be” underlines a glaring weakness in Haberman’s reporting which becomes obvious once you start looking for it. ABC’s scoop reinforces it. Haberman sits on information for the sake of her sources and to the detriment of Times readers. What counts as her scoops are almost always cleanup duty in one form or another. And her bosses, lke Carolyn Ryan, are fine with getting beaten in big ways in exchange for getting crumbs.

    • Ginevra diBenci says:

      To me, the only bit of news value in the NYT article is the suggestion that Trump himself will object to Pence testifying. Given Haberman’s usual sourcing, I would take that seriously.

      • P J Evans says:

        Given that neither Pence nor the former guy are in office, and Pence blew up all his own claims to privilege with that book, that would be an interesting hearing.

  9. Savage Librarian says:

    Maggie: “Mr. Pence described some of his ordeal in his recently published book, “So Help Me God.””

    Rewrite: Mr. Pence described some of his flip or deal in his recently published book, “So, HELP Me God!”

  10. Just Some Guy says:

    Pardon my ignorance for asking, but how does one claim Executive Privilege when one is no longer an Executive? Certainly I would think that any claim to EP by Pence would be waived by the current administration, no? I could see there being perhaps some risk to that, but as Dr. Wheeler already pointed out, since Dick Cheney testified under oath while Vice President (not after), not sure why Haberman’s story is even really a story other than as patently-obvious damage control.

    • BobBobCon says:

      It’s telling that Haberman and Thrush don’t even bother to cite *anyone* for the central new assertion in their piece, which made it all the way up to the subhed.

      An editor with any quality would have said if it’s so obvious there will be an EP challenge, they need to back it up, preferably with an on the record source. But nobody at the Times is allowed to touch Carolyn Ryan’s people but her. Ryan has been found out in the past to have cut her favorite reporters, like Michael Powell and Nellie Bowles out of the regular editing process, and nobody will hold her other favorites to normal standards either.

      • Just Some Guy says:

        Well yeah I’m not expecting accuracy from Haberman or her editors. I’m more curious as to who is feeding her — and subsequently the public — such nonsense, and I thank you for pointing out Marc Short as a likely culprit.

    • Rugger_9 says:

      Privilege, like confidentiality, was lost when Pence published his book. It’s more of a self-own here and SC Smith can dig in about it. However, it did expose more NYT and Mag&Mike hackery, always worth reminders.

      I wonder what they’ll say about the FBI search apparently underway at Pence’s IN home.

    • JonathanW says:

      Pardon the potentially silly question, but I had a similar question about how Pence could claim EP when the people talking to him are part of the Executive Branch themselves…. this seems to be similar to what Trump was trying to do in the civil suit he had with Judge Alice Cannon, where he said he had EP with regards to DOJ/FBI. Or am I confused by which branch a Grand Jury belongs to?

      • Rayne says:

        Recall the nature of executive privilege and the decision in United States v. Nixon (1974). SCOTUS unanimously determined the president doesn’t have executive privilege — specifically absolute immunity — from subpoenas or other civil court actions. The executive office’s claims of executive privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”

        None of POTUS or VP’s actions on January 6 with regard to POTUS’ failure to execute his duties or VP’s efforts to protect himself and/or Congress from criminal behavior should be immune from subpoenas issued as part of a criminal investigation. Pence’s documentation of that day in his book also discards any claim to confidentiality.

  11. Molly Pitcher says:

    Not much works in Pence’s favor more than Trump being cleared out of the way for his own Presidential run. I think his protestations about any investigation into Trump for the ‘Russia hoax’ make for good cover for the MAGAs he needs to appeal to. If he fights the subpoena he looks even better.

    But when he loses the fight, he gets to unload on Trump behind closed doors and try to clear his own path to the nomination. It must be pleasant to live life in such delusion.

  12. wasD4v1d says:

    I would like to have a sigint balloon to pick up any conversations Pence might be having with Luttig. Rectitude seems more his core than theatrics, which he is very bad at.

  13. GWPDA says:

    I believe I read the first few paragraphs of the Times’ report and -then- checked the authors. I then switched over to The Guardian. On the whole, I have found the Times less than informative in the matter of either documents theft or 6 January.

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  14. Drew in Bronx says:

    Pence was raising alarms about “separation of powers” (of the former executive from the current executive??) during the time that his lawyers were negotiating with the DOJ about the subpoena/testimony. It really seems to me that they all knew that he was going to have to testify and that the public outrage is part smoke-screen to pretend to MAGAland that he was resisting and part rhetorically pushing back on DOJ to try to get a more favorable (to him) resolution of the negotiations. It’s not a sincere argument in any case.

    Having been at close quarters with all stripes of devout people over the past half-century or so, I don’t buy the “honorable man” and “honesty” takes on Pence. What he wants to be is “proper,” especially for public consumption. I do think that he’s less likely to lie or be too evasive with the grand jury mostly because he’s not fast enough on his feet and the demise of Trump would be to his liking insofar as what he says will be strictly secret. He’s also not in a good position to be aggressively “forgetting” since bunches of this stuff are already in writing and his subordinates have already testified, so there’s plenty to “refresh” his memory–and I don’t think he really has the experience or training to stick with his forgetfulness as much as some of those we’ve seen in this.

  15. dadidoc1 says:

    In the event that Mike Pence’s executive privilege claims fail based on his book and public statements, is there a reason that he shouldn’t plead the fifth just like Donald Trump did repeatedly?

    • Drew in Bronx says:

      I’m not a lawyer, but stonewalling on questions about someone else’s crimes that you clearly know the answer to via pleading the fifth, seems to me to increase the risk of having the prosecutor decide to look into whether you might be some sort of accessory to said crime. It’s likely that Pence’s testimony is not absolutely needed to get the indictment, there’s lots of other evidence. I don’t think Pence is that likely to be that expert in taking the 5th, and as Peterr pointed out above, there are ways for the prosecutor to put him in a vice over his published statements. I’m betting that he would rather clarify and correct those than clamming up and having the grand jury watch his statements quoted by the prosecutor. He’s always publicly polite but I have no reason to think that he really wants to take big risks to keep the truth about Trump from coming out.

      • GV-San-Ya says:

        Perhaps Pence could be given immunity as a roadblock to his ability to plead the fifth?

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      • earlofhuntingdon says:

        Being at risk of legitimate criminal jeopardy is needed to invoke the Fifth. There’s been no evidence yet that that’s true of Pence, as opposed to Trump, who’s awash in it.

  16. Patrick Carty says:

    So the FBI stopped by Pence’s Indiana abode in a “coordinated” search to discover another classified document. Perhaps the commencement of Operation Bozo? Mike’s butt is covered.

  17. Bay State Librul says:

    Read Charlie Pierce’s latest on Pence and you have the answer.
    Let’s not complicate the matter.
    Pence thinks he is doing God’s work.

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    • Ginevra diBenci says:

      Pence has always thought he is doing God’s work. That is hardly news. The question now is how that will inform his response to the DOJ.

  18. John in IL says:

    Yeah, Pence can’t back out of anything now. He probably also will not be able to take the 5th for things he described in his book. I think most judges may force him to answer all the questions, in a blanket way. Personally I am loving it! Pearl clutching Pence is in a claptrap!

    • bmaz says:

      There is no basis for those statements. You don’t have any idea what the circumstances might be, nor any idea what his defense lawyers may use as a defense theory.

      • Ginevra diBenci says:

        bmaz, I’m curious: what do you assess that Mike Pence needs defense lawyers for? (Aside from it being a generally good idea.) Is he incriminated in ways I missed?

        • earlofhuntingdon says:

          Pence already has legal counsel, as he should, given that he’s being investigated for inappropriate retention of government materials, and being assessed as a fact witness regarding the serious crimes of others.

          The conclusion that he committed no crimes, at least none worthy of prosecution, comes at the end of a long process, not at the beginning, no matter how much television commentators might wish otherwise.

  19. Doctor My Eyes says:

    One thing I never forget, Pence was Manafort’s choice to be Trump’s VP. If that doesn’t scream, at the very least, “safe for Russia,” I don’t know what would. Because of that, I have assumed that Pence is compromised. I’m pretty sure it wasn’t Paul’s Christian beliefs.

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