WASHINGTON – If Vice President Mike Pence doesn’t comply with House Democrats’ request to turn over by Tuesday documents related to the Trump administration’s actions on Ukraine, Democrats have said that refusal can be used as evidence to impeach the president.
Pence, himself, could also face repercussions.
Those range from a more probable next step – Pence is subpoenaed – to the most extreme route that experts say Democrats are unlikely to pursue: Pence is also impeached.
“I don’t see him as the target,” said Stuart M. Gerson, one of 16 conservative lawyers who released a statement last week in support of an “expeditious impeachment investigation.” “That creates a political issue that one would assume the Congress is smart enough to avoid.”
Instead, Gerson and other legal experts expect Pence to be treated like other officials in Democrats’ efforts to investigate whether Trump withheld military aid to Ukraine as part of an effort to get the newly-elected president to investigate presidential candidate Joe Biden and his son, Hunter.
Democrats have subpoenaed a variety of people inside and outside of the administration, including giving acting White House Chief of Staff Mick Mulvaney an Oct. 18 deadline to comply with a large documents request.
Marie Yovanovitch, the former U.S. ambassador to Ukraine, testified under subpoena Friday after the administration ordered her not to appear before the House investigatory committees voluntarily. U.S. Ambassador to the European Union Gordon Sondland has said he will testify under subpoena on Thursday.
Trump and his team have told Democrats the White House will not provide documents or witnesses to House impeachment investigators because it considers their investigation to be unfair and illegitimate. Among their criticisms is the fact that the House has not formally voted to begin impeachment proceedings, a move that House Speaker Nancy Pelosi has argued is not required.
Peter J. Wallison, who served as White House counsel to President Ronald Reagan, predicted the courts will view the Democrats’ impeachment inquiry as a political fight and not enforce any subpoenas.
“On the merits, I think the administration has it right, not to comply with requests for documents and testimony until the House actually adopts a resolution of impeachment,” Wallison said. “That’s the way it has been done in the past and is the only sensible way for this to proceed.”
Constitutional scholar Jonathan Turley, who has participated in prior impeachment cases, said Pelosi’s refusal so far to hold a House vote on impeachment, weakens Democrats’ legal argument but is not fatal.
“The court may not be confident as to why the House is pursuing this information when the speaker has steadfastly declined to hold a vote of the body,” said Turley, who was the lead counsel in the last Senate impeachment trial of a federal judge in 2010 and testified at the impeachment hearings of President Bill Clinton. “The odds still favor Congress regardless. But it may take more time.”
Trump has accused Democrats of trying to take him out by “coup.” If Trump were impeached by the Democratic-controlled House and removed by the Republican-controlled Senate, Pence would become president, keeping Republicans in control of the executive branch.
If both Trump and Pence were to be removed, however, Pelosi would become president.
While vice presidents can also be impeached, Pence’s operating theory may be that he’s protected because Pelosi is the next in succession, said Julian Epstein, who was the chief counsel for House Judiciary Committee Democrats during Clinton’s impeachment.
“There’s a certain amount of truth to that,” Epstein said. “But I’d be very careful if I were him. Certainly, if he’s not physically impeached, he can be reputationally impeached. This can be a definite career-ender for him."
Epstein said Pence should find back channels to signal that he wants to be as cooperative as he can be within the strictures of executive privilege.
Pence told reporters last week that he has no problem with the White House releasing transcripts of his conversations with the Ukrainian president, something he said White House lawyers are reviewing.
Democrats have requested a variety of material from Pence, including those relating to his meeting with Ukrainian President Volodymyr Zelensky in early September and a call a few weeks later.
If Pence doesn’t comply, the House can vote to hold him in contempt. The House sergeant-at-arms could then take him into custody, a highly unlikely outcome.
“Can you see the sergeant-at-arms showing up and meeting the FBI?” Gerson said. “I doubt that that’s the scenario.”
Being in contempt of Congress is also a federal misdemeanor, punishable by a fine of up to $100,000 and a year a prison. But the House would have to rely on Trump's Justice Department to prosecute Pence.
The third option for Democrats is asking the courts to uphold a subpoena. If he declines, then he’s not just defying the House, but defying the courts, said constitutional scholar Frank O. Bowman, III, author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”
“The court has its own mechanisms to deal with people who've done that – fines, jailing, all sorts of things, which would certainly be an awkward kind of thing to happen to a vice president,” Bowman said.
Pence’s most obvious legal defense for not complying would be claiming executive privilege, the right of the president and high-level executive branch officials to withhold information.
If a battle with the White House comes down to that, past precedents and judicial decisions make it clear that in cases of credible allegations of wrongdoing, an executive privilege claim is overridden by the need to determine any violations of law or the Constitution, said Mark J. Rozell, an expert on executive privilege at George Mason University.
Rozell said that when he first wrote his book on executive privilege in the 1990s, he could have said with confidence that the precedent would hold.
But, he added: "It is hard to say what the current court might determine, if things got that far.”
This article originally appeared on USA TODAY: Impeachment: Vice President Pence faces deadline to provide documents