“Pretty much the last step”: Legal experts say subpoena shows special counsel closing in on Trump

Special counsel Jack Smith issued a subpoena to former Vice President Mike Pence after months of negotiations in a sign that the investigation into the Jan. 6 attack on the Capitol is nearing its “climax,” according to legal experts.

Smith, who is overseeing Justice Department probes into former President Donald Trump’s Mar-a-Lago documents scandal and the Jan. 6 Capitol riot, requested testimony and documents from Pence related to Trump’s failed effort to overturn his election, ABC News and other outlets reported on Thursday.

The subpoena followed months of negotiations between prosecutors and Pence’s attorneys, according to the report. The move suggests that the probe is entering a “more advanced stage,” ABC News reported, but it’s not clear whether Pence may try to use executive privilege claims to fight the subpoena, which could set off a lengthy legal battle.

Former federal prosecutor Renato Mariotti predicted that Pence will “testify one way or another.”

“Often witnesses who want to testify *ask* for grand jury subpoenas so they can say they were compelled to testify even when they are willing (or even eager) to come in and talk,” he explained on Twitter. “If Pence doesn’t fight the subpoena, that would be a sign that he isn’t really resisting this testimony.”

Mariotti added that Trump himself could try to sue to block the subpoena “but it is very unlikely that he would prevail.”

Though it’s unclear whether Smith is targeting Pence in connection to other individuals involved in the Jan. 6 plot, Mariotti said it is more likely that the special counsel is “building a case against Trump” and the subpoena should “greatly concern Trump’s team.”

The “timing” of the subpoena could also play a role as Pence reportedly plans to announce a 2024 presidential bid against Trump, noted former U.S. Attorney Harry Litman.

“He doesn’t want this to be the #1 thing hanging over him,” he tweeted. “Politically, he would be better off complying promptly then fighting only to have to testify in or near the heat of the campaign.”

Litman said the Pence subpoena suggests that Smith is “nearing the end of the investigation” because it’s a “move you don’t make too early.”

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Former U.S. Attorney Joyce White Vance agreed that it is “late in the game” to interview Pence, who is someone you “want to talk to you after you have all of the other testimony, and when you’re just about ready to make a decision.”

“Pence has always been the essential witness when it comes to establishing whether or not Trump’s involvement in the pressure campaign for the VP to interfere with the election result was criminal. Smith has to get his testimony before he can make a prosecutive decision,” she tweeted.

Former federal prosecutor Glenn Kirschner agreed that the subpoena is a sign that Smith is closing in on Trump.

“If the Trump insurrection investigation were an action-adventure movie, it kind of feels like we’ve now entered the car chase phase and we’re… heading toward the climax,” he told MSNBC.

Former FBI agent Peter Strzok told the network that the subpoena to Pence is “pretty much the last step before you approach Trump.”

Neal Katyal, a former acting solicitor general, said the subpoena also suggests that Smith called Pence’s “bluff” after months of negotiations.

“My guess is Pence did what he’s been doing for the last two years, talk out of both sides of his mouth,” Katyal told MSNBC. “You know, send his aides to say some things but not say much himself and Jack Smith called his bluff and said, ‘you know, we need to get to the bottom of this.’… I thought it was unforgivable that the Jan. 6th committee, which did such a great job, but just let Pence skate and just had testimony from his aides. Pence is kind of like the Forrest Gump in this situation. He’s kind of everywhere, yet we’ve not heard from him. So, I’m glad law enforcement is hearing from him finally.”