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pence has been subpoenaed. this is been a major move by the special counsel investigating donald trump s efforts to overturn the 2020 election. pence was key to trump s plans to stay in power. this is what the former president said on january 6th. i hope mike is going to do the right thing, i hope so. i hope so. because, if mike pence does the right thing, we win the election. all vice president pence has to do is send it back to this dates to recertify and we become president and you are the happiest people. okay, i want to bring in cnn chief law enforcement intelligence analyst john miller. also legal analyst jennifer rodgers, and andrew mccabe, the former fbi deputy director. great have all of you tonight. jennifer want to start with you, we had nick akerman on last hour, former watergate prosecutor who said that without pans there is no indictment. that the special prosecutor does not bring in indictment without pence s testimony. do you agree with that? i do ....
Scope and certainly one that will be second guessed from every quarter, you have to look under every rock and mike pence is a very big rock for jack smith. he has to try to get him under oath, he might not be successful, but he has to do everything possible to secure that testimony. if you look back at the mueller report, the fact that the mueller team chose not to subpoena donald trump remains as a kind of hanging that many people including myself think was a fundamental flaw in the investigation. here s what mike pence himself, john, has said about, basically what president trump wanted him to do. he said this to the federal society a year ago. president trump said i have the right to overturn the election. president trump is wrong. i had no right to overturn the election, the presidency belongs to the american people and the american people alone. ....
So, it could be telling us that jack smith is rounding third base. that is really interesting. here s who has already testified to the grand jury, so not jack smith the special counsel, but the grand jury, who can also testify to president trump s state of mind. that is pat cipollone, the former white house counsel, after filming, marc short who is pence s chief of staff, jake former dhs official. so it seems like they have some information that they can rely on without fans, but what if jen he says in the executive privilege, that does not have to testify? you will have to testify but the question is how long does it take. if you try to invoke executive privilege, then doj through the special counsel will go to court and they will fight it. but the law here is a clear, in a criminal matter, if you have a testimony that you need that is important, and you cannot get it from elsewhere, that is ....
And frankly there is no idea more un-american than the notion that any one person could choose the american president. so there are times when he will talk about it, so we do not know if you will talk to the special counsel, but there are times when he wants to get off his chest. he is also written about it in his memoir. i think he and andy summed it up that there are conversations that mike pence had with donald trump, likely alone, possible with others, that his directly thrown-y is critical. in terms of tipping in cuba, where a cases at, when you are jack smith and you are subpoenaing the former vice president of the united states it is a pretty good signal that that is one of the interviews, if not the interview, that you stay for laugh. because you won t have all of your investigative ducks in a line before you talk to that critical witness. you want to be able to counter that with any kind of questions where you know everything that you could know at that point. ....
The key here then that will trump any executive privilege. that is very clear supreme court president, u.s. versus nixon. that s not the case for congressional investigations which is what congress did not have the ability to force people to testify in the same way, but he will lose that fight and he will testify, the question is how much litigation do we see before that happens? that s really interesting because i have not heritage spelled out that unequivocal before. do you agree that jack smith is rounding third base in terms of being close to being done? i would like to think so. i think it s as good a sign as we have seen so far, so it is entirely possible that he is. in addition to that list of folks that we know, we went in front of a grand jury, there are likely many others who did not go to a grand jury but who participated in voluntary issues, and for whatever reasons felt they didn t get them in front of the grand jury. so they ve done a lot of, work jack smith is very a ....