Judging Freedom - FBI search former VP Pence’s home

Episode Date: February 10, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, February 10, 2023. It's a beautiful spring-like day here on the east coast of the United States, about 60 degrees out, sunny and a mild breeze. It's about 2.35 in the afternoon. We learned this morning, well, we learned late last night that the grand jury investigating the events of January 6th, particularly the team that is focusing on former President Donald Trump, the prosecutors have obtained from that grand jury a subpoena of former Vice President Mike Pence. And then we learned this morning that former Vice President Pence's home in Carmel, Indiana, is being searched

yet again by the FBI. So I come to the camera to comment to you about both of these. The search of former Vice President Pence's home is connected to the subpoena because the lawyers in the Justice Department and the lawyers for the former Vice President have been negotiating for the past several weeks. Their negotiations had to do with the timing of the search of the House and with the nature of the former Vice President's testimony before the federal grand jury. Now, this is Jack Smith. This is the special counsel appointed by the Attorney General of the United States, Merrick Garland, to investigate Donald Trump in two areas. One, the documents found at Mar-a-Lago, and two, the events leading up to surrounding and taking

place on January 6th. I'm going to guess that those negotiations did not work for to Pence's benefit with respect to the testimony before the grand jury, and that's benefit with respect to the testimony, uh, before the grand jury. And that's the reason he got the subpoena, but they did work with respect to the, um, search of his house. The former vice president is in California. So he's not there in his house today. You don't want to be there when you're, they're going through your house and they don't want you there when they're going through your house. So that search, I believe, is now over. It was prompted by the former vice president's lawyers saying they found 10 documents in the house. I guess the FBI was concerned there might be more. So it's a consensual search. There was no search warrant. There was no raid. There was nobody showing up

at six in the morning. It was like, when you go to California, while you're gone, we're going to come to your house. Okay, I agree. He signs the waiver and the FBI shows up. We don't know what they found. We don't know if they'll leak it. We don't know if his lawyers will leak it. If the FBI leaks it, it's a violation of regulations. If his lawyers leak it, it's not. At the same time, the negotiations did break down as to what Vice President Pence will say and when he will say it to the grand jury. Now, this creates a host of legal issues. He received a subpoena which compels him to testify. He can do one of two things.

He can direct his lawyers to move to quash, really squash, but they got rid of the S, so it's quash. Quash the subpoena, in which case he won't have to comply with it, or he can show up and testify. The basis for the quash would be executive privilege, that the communications between the president and the vice president at the time they were both in office, we're talking about January 4th, 5th, and 6th, 2021. Those communications theoretically are protected by executive privilege. Now, they're only protected if they involve military, diplomatic, or national security secrets. If they involved an attempt to commit a crime by Trump, he's the subject of the investigation here. Pence is not. Then obviously there's no executive privilege. The other interesting aspect to this is Mike Pence has written a book. I believe the title of it is kind of typical for

Mike Pence, So Help Me God. Okay, that's the way you end your oath of office for almost everybody. I did when I became a judge. Presidents do. Vice presidents do. School board janitors can. Governors often do. But he chose that as the title of his book. In that book, there's a chapter about January 6th, and he reveals some of his communications with his wife, with his security team, with others in the Secret Service, with others in the White House, and with the then President Donald Trump. So there may very well be no executive privilege here because even though it's not Mike Pence's to wave, it's the President's to wave. Mike Pence has already spilled the beans about the nature of their communications. We'll see. But beyond the

executive privilege issue is something that should not cause the former president to rest well at night. This is the type of testimony that comes at the end of an investigation, not at the beginning. This tells me, because they have now reached Mike Pence, that they have brought before the grand jury already nearly everyone whose testimony they want the grand jury to hear. And they, the prosecutors, are ready to go to their boss, Attorney General Garland, and say, here's the case. In our opinion, it is worth seeking an indictment and there's enough evidence to convict. Or in our opinion, it is not worth seeking the indictment. We haven't even got to the issue of conviction. I'm convinced it's going to be the former on the basis of just the evidence that has leaked out already and on the basis of the degree of involvement and resource dedication by the Justice Department to these two tasks, Donald Trump's involvement in January 6th and Donald Trump's wrongful retention, possession, and movement of national defense information documents at his home in Florida. But this one is not Mar-a-Lago. This one involving Mike Pence

is just January 6th. We'll see. It doesn't give me any joy to say that Donald Trump is about to be indicted, but I have to be candid when I make public interpretations of the law and legal procedures, especially here on Judging Freedom and especially with all of you. More as we get it. Judge Napolitano for Judging Freedom.