Special Counsel Robert Mueller may have considered Mike Pence a marginal figure in the events at the heart of his Russia investigation. Or he simply decided that trying to question the vice president would cause more trouble than it was worth.
Those are among the theories posed by legal experts, including a former federal prosecutor and a onetime government lawyer, on why Mueller never asked for an interview with Pence, whose name appears a handful of times in a 448-page report on the investigation that has consumed most of President Trump’s first term.
“The most likely hypothesis is they looked at the facts and what they knew and said they didn’t need to interview him,” said Bob Litt, former general counsel for the director of national intelligence. “Given the scope, the number of people they interviewed [about 500, according to the report], they probably thought there wasn’t anything they could gain.”
Published Thursday, the report concluded that none of the contacts between Trump’s 2016 campaign and Russian operatives seeking to sway the election in his favor constituted a criminal offense. It left open the question of whether Trump’s attempts to interfere in the investigation violated obstruction laws.
Attorney General William Barr, a Trump appointee confirmed by the Senate this year, has determined it didn’t, though Congressional Democrats have seized on unflattering details from the report to question the president’s conduct, with some calling for impeachment.
Pence, who reportedly submitted documents to the special counsel, echoed the White House’s assessment that the report exonerated Trump. “The special counsel’s report confirms what the president and I have said since day one: There was no collusion between the Trump campaign and Russia, and there was no obstruction of justice,” he said in a statement.
“Pence has been very marginal and peripheral to this investigation,” said Pace University law professor Ben Gershman. “Maybe they felt they had bigger fish to fry.”
Mueller notes in the report that after the FBI began an investigation into website WikiLeaks’ release of stolen emails from Hillary Clinton’s campaign, an event that damaged the candidate in the last weeks of the election, Pence insisted that the Trump operation was not involved.
“Nothing could be further from the truth,” Pence told reporters asking whether the campaign was “in cahoots” with WikiLeaks.
“Maybe Mueller felt Pence wasn’t really privy to information about WikiLeaks,” Gershman said.
The vice president also played a role in the firing of former national security adviser Michael Flynn, whom Trump dismissed on the grounds that he had misled Pence about conversations with Russian Ambassador Sergey Kislyak regarding U.S. sanctions on Russia before the Obama administration left office.
In mid-January 2017, Flynn told Pence that he hadn’t spoken with Kislyak about the sanctions, a statement that Pence and other senior White House officials repeated to the press. A month later, reports surfaced that Flynn had, in fact, discussed sanctions with Kislyak, prompting Pence and other advisers to review underlying information and conclude that Flynn “had been lying,” according to the Mueller report.
The officials “concluded that Flynn should be terminated and recommended that course of action to the president,” according to the report.
Mueller may also have passed over Pence because he didn’t want to offer immunity to the vice president and other senior White House officials, including adviser Jared Kushner and his wife, Ivanka Trump, the president’s daughter.
“That would have been the only way he could get them to talk,” Gershman said. “He might have felt it was indiscreet or not really worthwhile to pull them in and get into a haggle over whether they would get immunity.”
Another reason, suggested former federal prosecutor Gene Rossi, may have been that Mueller “did not want to protract” an investigation already criticized for moving too slowly.
Trying to interview or subpoena a vice president would be a “huge deal,” said Rossi, and “they probably didn’t want to go through the process of getting him to testify under oath or meet with agents.”
As for what’s in the documents Pence gave Mueller, “we can only speculate,” Gershman said.
