The Justice Department probes into Donald Trump’s conduct appear to be ramping up, as special counsel Jack Smith approaches key allies of the former president with knowledge of his activities surrounding the Jan. 6 Capitol attack and classified documents discovered at Mar-a-Lago in Florida.
In recent weeks, Smith has subpoenaed both former Vice President Mike Pence and then-White House chief of staff Mark Meadows, two figures with strong visibility into Trump’s actions leading up to and on the day of the deadly riot.
The Justice Department has also sought to pierce the attorney-client privilege connected to Trump’s lawyer in the Mar-a-Lago probe, Evan Corcoran, alleging he may have given legal advice in furtherance of a crime.
Approaching high-level targets is often a late-stage move for prosecutors, a sign the investigative stage of Smith’s Jan. 6 work could be winding down.
Meanwhile, the approach with Corcoran relays that the team will take an aggressive posture with anyone involved in the probe they believe may have committed criminal activity.
“We can draw a few conclusions from it that are fairly apparent. One is that Jack Smith is conducting a very aggressive investigation. Issuing a subpoena to an attorney is itself an aggressive step that requires high levels of supervisory approval of the United States Department of Justice,” said Renato Mariotti, a former federal prosecutor.
“I don’t think a prosecutor subpoenas Mike Pence unless they are far along in speaking to a number of other witnesses.”
The tactics are not without their challenges.
Pence has said he will challenge the subpoena, and it’s up to a federal judge to compel testimony from Corcoran.
Still, it’s a sign of progress in the dual probes, including with the Jan. 6 investigation, which has been perceived as presenting a much more complex case for any possible prosecution of Trump.
The documents case largely relies on showing willful retention of national defense information, something observers see as more straightforward given the lengthy battle to secure the return of classified records from Mar-a-Lago. The warrant to search the property also cited potential obstruction of justice.
Trump’s culpability for Jan. 6, however, is more complex, with possible statutes for prosecution requiring the demonstration of Trump’s intent.
“A lot of people believed that because the Mar-a-Lago case would be an easier case to prove that [Smith would] focus attention there and put the January 6 investigation on the back burner or put that second in line, and that has not been the case,” Mariotti said.
“I think it’s evidence that his investigation – at least to this Jan. 6 piece – is fairly far along.”
Danya Perry, a former federal prosecutor, said the moves also show the Mar-a-Lago probe into Trump has not been sidelined by the discovery of classified documents among the belongings of other former presidents.
“Obviously the special counsel has not decided to hang it up, which I think some people thought [he might] when news came out about a number of other former White House officials having classified documents,” Perry said.
“That side of the ledger, the classified documents side, it does seem to be focused on the potential obstruction issues given that he’s been trying to get testimony out of Corcoran.”
For his part, Pence is planning to roll out a novel legal strategy to sidestep the subpoena, one that hinges on his role on Jan. 6 as the presiding officer of the Senate.
His team is expected to argue that under his former position as president of the Senate, his work technically falls under the legislative branch, and he is therefore protected under the “speech and debate” clause of the Constitution, according to a source familiar with the former vice president’s plans.
Investigators likely want to speak to Pence about a number of meetings and conversations related to whether the then-vice president had the authority to buck his ceremonial duty to certify the election.
Mariotti says asking about more widely attended meetings they may have discussed with prior witnesses allows them to “test the veracity of what he says” before asking about conversations that were exclusive to the vice president and Trump.
“The ordinary course would be to interview all those other people, and then try to pursue Mike Pence with the knowledge that you already have from others,” he said.
But Perry warned that the Pence subpoena is no guarantee that Smith has completed his work talking to other witnesses.
“Jack Smith was probably aware that they’re going to invoke executive privilege. And so realized it would be a slog and so maybe wanted to get the ball rolling,” she said.
“Smith has certainly spoken with other witnesses,” she said, but could have initiated a subpoena sooner rather than later with the understanding that “it would be efficient for him to start a court battle now.”
Trump and his side have in some ways been just as aggressive in trying to push back against Smith’s investigations or shape the public narrative around them. The former president has routinely complained about Smith’s wife’s donations to Democratic candidates.
Trump’s team has said it will assert executive privilege over any potential testimony by Pence in the case, and it may seek to do the same should Meadows testify.
One former Trump White House official told The Hill that the former president’s team is confident that revelations that President Biden had classified documents at his home and office from his time as vice president will help shield Trump from possible charges in that matter, despite key differences in the Trump and Biden cases.
The former Trump official acknowledged Smith’s probe into Trump’s efforts to overturn the 2020 election will likely hover over the former president until it concludes, and Democrats and even some Republicans backing other candidates are likely to wield it against Trump on the campaign trail.
But, the official argued, any suggestions that the investigation will end Trump’s candidacy or put him out of politics is just “wishcasting.”
Spokespeople for Trump’s 2024 White House campaign did not respond to requests for comment.
Perry said the process is likely to stretch into the campaign season.
“We’re just at the beginning, I think, of a bunch of fights that are going to play out in front of different courts and probably then travel up and down the court system,” she said, noting the potential for challenges from Pence, Trump and Meadows.
“They are going to play out over many, many months, if not longer,” she said.
“It’s not going to be lightning fast. It’s going to be more glacial.”
And the special counsel’s probes are not the only legal headache for Trump.
This week a judge allowed the partial release of a report compiled by a Georgia grand jury tasked with reviewing Trump’s interference in the state following the 2020 election.
Though the jurors determined the report should be released, Fulton County District Attorney Fani Willis warned that doing so could compromise the proceedings for “multiple” future defendants in a case where charging decisions are “imminent.”
Fulton County Superior Court Judge Robert McBurney largely sided with Willis, determining that only the introduction and conclusion of the report should be released, along with one section discussing potential perjury that did not name any witnesses who appeared before the grand jury.
While the report’s three pages were slim on substantive details, they made two conclusions clear: There was no widespread fraud in the state that could have altered Trump’s loss there, and that at least one witness may have lied to the grand jury.
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This story was originally published February 19, 2023, 6:00 AM.