Opinion Mike Pence’s quiet subversion of Trump portends an ugly 2024


HR King
May 29, 2001
Former vice president Mike Pence is trying to thread a very small needle. He’s testing whether it’s possible to remain competitive for the 2024 GOP presidential nomination without adopting the position that Donald Trump is above the law.
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In a new piece, ABC News reports that various “lanes” have opened in the 2024 GOP jockeying. These lanes are defined by the varying levels of hostility among likely 2024 candidates to the FBI search of Trump’s Mar-a-Lago resort: While some enthusiastically echo Trump’s line that the FBI is corrupt to its core, Trump’s former vice president has taken a more nuanced position.

These differences could matter. If a Republican is elected president in 2024 — even if it isn’t Trump — it is very much an open question whether efforts to hold Trump accountable will continue, or whether they will be abruptly canceled.

Pence’s position on all this is complicated. It’s true that after federal agents searched Mar-a-Lago, Pence condemned the action, professing “deep concern” at this “political” use of law enforcement and demanding an explanation.

But Pence has also refrained from saying that the episode shows that law enforcement is corruptly anti-Trump. Indeed, Pence has called on Republicans to stop attacking the FBI and to stand with law enforcement instead.
That separates Pence from other 2024 GOP candidates. Sen. Josh Hawley (R-Mo.), for instance, railed that the search was an “unprecedented assault” on the rule of law and called for the removal of Attorney General Merrick Garland and FBI director Christopher Wray.

The divide here matters. The position of Hawley — and many other Republicans — is that the search of Mar-a-Lago cannot have been legitimate. Their stance is that the search can only constitute the work of President Biden’s totalitarian secret police force, an act of corruption worthy of “tin pot dictators,” as Sen. Ted Cruz (R-Tex.), another 2024 hopeful, put it. Other Republicans have argued for defunding the FBI.

All this has unfolded even though the search actually did recover numerous highly classified documents involving national security.
By contrast, Pence’s position still leaves space for the search to be seen as legitimate law enforcement activity. (Though he hasn’t explicitly adopted that position, either.)

In case anyone missed the distinction, Pence aides also leaked word that he had handled his office documents by the book, an obvious contrast with Trump. In doing this, Pence essentially told Republicans that GOP voters can be in favor of handling the public’s documents in accordance with all the applicable laws and rules.
At the same time, you can’t avoid noticing that Pence is taking an exceptionally cautious approach to staking out these differences. That shows how little space there is in GOP politics for breaking with Trump on such matters even in the most subtle of ways.

That very tentativeness shows the direction this will likely take. It’s plausible that Trump may face prosecution — or at least full and protracted criminal investigations — for his handling of the Mar-a-Lago documents, or for his efforts to overturn the 2020 election. When the GOP presidential primaries formally begin, these matters will get tangled up in all sorts of still-unpredictable considerations.

New York University law professor Ryan Goodman points out that a confluence of factors may well ensure that any such investigations or prosecutions stretch for years. The Justice Department might want to complete all these investigations before deciding on whether to prosecute on one or more of them. Constitutional questions may arise that would have to be litigated.
“Timewise, there are a number of factors that could draw out the plot,” Goodman told me. “There’s a strong likelihood that in 2025, we either have ongoing criminal investigations, or we have an indictment of Trump on one or more charges, and a long, drawn-out pre-trial phase or ongoing appeals.”

In the runup to 2024, then, GOP primary candidates will likely face intense pressure to declare that they will only appoint senior law enforcement officials who commit to ending any such investigations or prosecutions. It’s easy to see pressure to commit to defunding such law enforcement actions or even to presidential pardons, if they prove necessary.
“Trump will force the question,” Goodman said. “It will be a litmus test.”
The political scientists tell us that candidates actually tend to keep their promises. If Republican candidates pledge to use the presidency to place Trump above the law in whatever way they can, there is good reason to assume a winning GOP candidate would do exactly that.