Pence’s former chief of staff tried to discuss congressional precedent and failed miserably

On Friday, Marc Short, former chief of staff to Vice President Mike Pence, warned the Jan. 6 committee to consider the ramifications of calling a former vice president to testify before Congress. The question posed to him by CBS’s Catherine Herridge specifically pertained to whether Pence was actively considering being interviewed by the committee. But Short spun the question toward the committee’s subpoena power, cautioning that subpoenas could be used to compel President Biden to testify before a Republican-controlled Congress next year if the Jan. 6 committee were to establish the “risky precedent” of compelling former vice presidents to testify.

Beyond Short’s seeming lack of concern for addressing the grievous harm wrought to our democracy during last year’s coup attempt, his discussion of subpoenas is a leap. Investigative committees often rely on subpoenas where voluntary testimony, or else the mere threat of a subpoena, fails.

Yet, in Pence’s case, the committee has stated a clear preference for his voluntary testimony. Although Short himself testified only after a subpoena had been issued, this need not be the case for Pence, who already publicly rebuffed President Trump’s pressure during the events in question and is in a position to elevate himself above partisan rancor, if he so chooses.

Short’s warning also misses the mark as it pertains to precedent. As numerous sources make clear, there is centuries’ worth of precedent concerning current and former executive branch elected officials testifying before Congress. President Washington testified before the entire Senate in 1789 concerning Indian treaties. President Lincoln and President Wilson likewise testified before Congress during their presidencies. Vice President Schuyler Colfax testified while in office as part of a corruption investigation that concerned his actions prior to assuming the role of vice president. Notably, President Ford testified before a House Judiciary Subcommittee concerning his decision to pardon President Nixon. Other high-level executive branch officials have done the same.

If sitting executive branch elected officials can be asked to testify, how much more so for former executive branch elected officials? Precedent exists for this too. President Theodore Roosevelt, and others, testified before Congress after their presidencies ended. Roosevelt in fact testified twice, voluntarily, on unrelated matters, even when difficult. He, of course, was also a former vice president.

Where precedent exists for requesting voluntary testimony from such officials, why should there be a special rule barring compulsory testimony of these same officials? So long as the legislative purpose requirement is met and executive privilege is not violated, subpoenaing a former executive branch elected official to testify may at times even be necessary. Such is certainly the case here, where Pence has unique knowledge of the circumstances surrounding the unprecedented attack on our nation’s democratic process by virtue of having been at the center of it, as the Framers intended.

Perhaps the most troubling aspect of Short’s CBS interview is his threat to investigate President Biden and his family following the November election if the Jan. 6 committee subpoenas Vice President Pence. This is concerning for three reasons. First, it conditions a future investigation of suspected corrupt dealings on the present investigation of a known attempt to subvert our democratic process writ large. The two are not linked nor are they comparable. Second, there is a qualitative difference between Pence merely being asked to provide evidence and Biden, along with his family, being the target of a potential future investigation. Third, Short’s mendacity is clear from the way in which he refers to Biden as a former vice president, rather than the current commander in chief.

In sum, Short’s interview was beneath the dignity that is demanded when discussing Jan. 6. He would do well to avoid falsely equating interviews with subpoenas and claiming a lack of precedent where ample precedent exists. Short would also certainly be wise to avoid making retaliatory threats against the president.

As members of Short’s own party understand, the Jan. 6 committee was established to examine the truly unprecedented attack on our democratic process that occurred 18 months ago. An invitation to appear before it should be met with cooperation rather than threats of reprisal after the next election.

Harry William Baumgarten served as legislative director and counsel to members of the House of Representatives. He is also a member of the Supreme Court Bar whose writings have been featured in leading domestic and international publications.