Pence told Jan. 6 special counsel harrowing details about 2020 aftermath, warnings to Trump: Sources
The former VP is the top official known to have spoken with investigators.
Speaking with special counsel Jack Smith's team earlier this year, former Vice President Mike Pence offered harrowing details about how, in the wake of the 2020 presidential election, then-President Donald Trump surrounded himself with "crank" attorneys, espoused "un-American" legal theories, and almost pushed the country toward a "constitutional crisis," according to sources familiar with what Pence told investigators.
The sources said Pence also told investigators he's "sure" that -- in the days before Jan. 6, 2021, when a violent mob tried to stop Congress from certifying the election -- he informed Trump he still hadn't seen evidence of significant election fraud, but Trump was unmoved, continuing to claim the election was "stolen" and acting "recklessly" on that "tragic day."
Pence is the highest-ranking current or former government official known to have spoken with the special counsel team investigating efforts to overturn the 2020 election. What he allegedly told investigators, described exclusively to ABC News, sheds further light on the evidence Smith's team has amassed as it prosecutes Trump for allegedly trying to unlawfully "remain in power" and "erode public faith" in democratic institutions.
Pence could take the stand against Trump should Smith's election interference case go to trial, which is currently slated to occur in March.
As described to ABC News, much of what the former vice president told Smith's investigators mirrored -- and at times restated verbatim -- comments he has previously made publicly. Questions from Smith's team repeatedly focused on a book Pence published last year, with investigators apparently seeking to have Pence confirm -- under oath -- an array of post-election stories and opinions he included in the book.
But speaking with Smith's team behind closed doors, Pence also offered previously-undisclosed anecdotes and details showing how his longtime friendship with Trump unraveled in the final weeks of their time in the White House, including Pence's repeated warnings to Trump about the then-president's push to overturn the election results.
Sources said that in at least one interview with Pence, Smith's investigators pressed the former vice president on personal notes he took after meetings with Trump and others, which investigators obtained from the National Archives.
According to sources, one of Pence's notes obtained by Smith's team shows that, days before Pence was set to preside over Congress certifying the election results on Jan. 6, 2021, he momentarily decided that he would skip the proceedings altogether, writing in the note that there were "too many questions" and it would otherwise be "too hurtful to my friend." But he ultimately concluded he had a duty to show up.
Speaking with Smith's team, Pence insisted his loyalty to President Trump at the time never faltered -- "My only higher loyalty was to God and the Constitution," sources described Pence as telling them.
Sources said that investigators' questioning became so granular at times that they pressed Pence over the placement of a comma in his book: When recounting a phone call with Trump on Christmas Day 2020, Pence wrote in his book that he told Trump, "You know, I don't think I have the authority to change the outcome" of the election on Jan. 6.
But Pence allegedly told Smith's investigators that the comma should have never been placed there. According to sources, Pence told Smith's investigators that he actually meant to write in his book that he admonished Trump, "You know I don't think I have the authority to change the outcome," suggesting Trump was well aware of the limitations of Pence's authority days before Jan. 6 -- a line Smith includes in his indictment.
In April, ABC News reported that Pence had just testified before a federal grand jury in Washington. Two months later, in June, Pence launched a bid to challenge Trump as the Republican Party's next presidential candidate -- but Pence's campaign lasted only four months.
'Accept the results'
Sources said Pence acknowledged to Smith's team that even before Election Day on Nov. 3, 2020, he was aware that the Trump-Pence ticket was expected to take a big early lead in the polls that would then gradually fade as more mail-in ballots were counted.
In the first few days after the election, Pence never saw any "significant allegations of fraud," according to what he told Smith's team, sources said. But Trump still declared victory -- and claimed there was "a major fraud in our nation" -- within hours of polls closing, though Pence allegedly told investigators he believes Trump was speaking "in very general terms," not about specific instances of fraud.
At the same time, Trump privately instructed Pence to dig into any potential fraud or "irregularities" in the election, telling Pence their campaign "was going to fight," in court and elsewhere, Pence allegedly told Smith's team.
However, sources told ABC News, Pence said he grew concerned when, within days of the election, Trump began ignoring the advice of credible and experienced attorneys inside the White House, instead relying on outside attorneys like Rudy Giuliani and Sidney Powell, who pushed notions of widespread election fraud and, as Pence allegedly told Smith's team, "did a great disservice to the president and a great disservice to the country."
There is "no doubt" that Trump "knew what I thought of those attorneys," but he still listened to them, Pence told Smith's investigators, according to sources.
In his interviews with Smith's team, Pence recalled a meeting he had alone with Trump inside the Oval Office on Dec. 21, 2020, as the campaign's legal challenges across the country were failing but Trump was continuing to claim the election was stolen and had begun urging supporters to gather in Washington, D.C., for a "big protest" on Jan. 6, 2021.
When Trump privately asked Pence what they should do, Pence said he told the then-president that if nothing changed, "[you] should simply accept the results," "you should take a bow," travel the country to thank supporters, "and then run again if you want."
"And I'll never forget, he pointed at me ... as if to say, 'That's worth thinking about.' And he walked [away]," Pence recalled to investigators, sources said.
However, two days later -- as noted in Smith's election interference-related indictment against Trump -- Trump "re-tweeted a memo titled 'Operation PENCE CARD,' which falsely asserted that the Vice President could, among other things, unilaterally disqualify legitimate electors from six targeted states."
When Pence, on his way to Colorado for Christmas vacation, saw Trump's post, he turned to his wife and said, "Here we go," he recalled to Smith's investigators, sources said.
'No idea more un-American'
As Pence described it to investigators, according to sources, he understood by late December 2020 that the Trump campaign had run out of legal options in its fight to remain in power -- but he urged lawmakers to raise potentially credible allegations of fraud during the upcoming proceedings on Jan. 6, 2021, when Pence would be presiding over Congress to certify the election results and decide whether to reject any votes.
In a meeting at the White House in late December 2020, as many as 20 House Republicans erupted in applause after Pence told them to "get your evidence together" and assured them "we [will] get our day in Congress," with an opportunity for all of the evidence to be heard before the election would be certified, sources said he told Smith's team.
Pence told investigators he was then still "very open to the possibility that there was voter fraud" in the election, and he was focused on following the facts and the law, according to the sources.
At the same time, Trump was privately pressing Pence to reject certain votes at the Jan. 6 proceedings and block certification of the election -- and Trump even suggested to Pence that perhaps he should skip the session altogether, Pence allegedly told Smith's team. But, according to sources, Pence told investigators that he "clearly and repeatedly" emphasized to Trump that rejecting certain votes would violate the Constitution.
"I told him I thought there was no idea more un-American than the idea that any one person could decide what electoral votes to count," Pence allegedly told Smith's team, echoing what he has said before in his book and other public forums. "I made it very plain to him that it was inconsistent with our history and tradition."
Pence insisted that in America, under the Constitution establishing three co-equal branches of government, election disputes are resolved by courts and elected lawmakers, sources said.
But, the sources said, with the pressure on Pence mounting, he concluded on Christmas Eve -- just for a moment -- that he would follow Trump's suggestion and let someone else preside over the proceedings on Jan. 6, writing in his notes that doing otherwise would be "too hurtful to my friend."
"Not feeling like I should attend electoral count," Pence wrote in his notes in late December. "Too many questions, too many doubts, too hurtful to my friend. Therefore I'm not going to participate in certification of election."
Then, sitting across the table from his son, a Marine, while on vacation in Colorado, his son said to him, "Dad, you took the same oath I took" -- it was "an oath to support and defend the Constitution," Pence recalled to Smith's investigators, sources said.
That's when Pence decided he would be at the Capitol on Jan. 6 after all, according to the sources.
Trump 'acted recklessly'
Smith's federal indictment against Trump, filed in August, repeatedly refers to Pence, including Trump's unsuccessful efforts "to enlist" him.
The indictment says Trump's claims of outcome-determinative fraud in the election "were false, and [Trump] knew that they were false," in part because Pence, "who personally stood to gain by remaining in office," already told Trump "he had seen no evidence of outcome-determinative fraud."
Senior White House attorneys, senior Justice Department officials, senior staffers on Trump's campaign, officials at the Department of Homeland Security, and state and federal courts across the country had offered similar assessments to Trump, the indictment notes.
But Trump repeated claims of widespread election fraud anyway to, among other things, "create an intense national atmosphere of mistrust and anger," according to the indictment. And in his public statements on the morning of Jan. 6, Trump "directed" supporters to the Capitol "to obstruct the certification proceeding and exert pressure" on Pence, the indictment alleges.
"After it became public on the afternoon of January 6 that the Vice President would not fraudulently alter the election results, a large and angry crowd -- including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results -- violently attacked the Capitol and halted the proceeding," the indictment says.
According to sources, when Pence spoke with Smith's team earlier this year, he said Trump's words that morning "didn't help," and he said Trump "acted recklessly" as the Capitol was under siege. But Pence also said he will "never believe" Trump meant for Jan. 6 to become violent.
Trump has pleaded not guilty in the case and denied any wrongdoing. He recently accused Pence of "mak[ing] up stories about me, which are absolutely false."
"I never said for him to put me before the Constitution," Trump posted to his social media platform, Truth Social, in September. "Mike failed badly on calling out Voter Fraud in the 2020 Presidential Election."
A spokesperson for Trump told ABC News, "Tens of millions of Americans, including Vice President Pence, as he repeatedly stated himself, have had grave and serious concerns about the legitimacy of the rigged and stolen 2020 Presidential Election, further proving that the lawless indictment against President Trump should be summarily dismissed."
Pence has never described the election as "stolen," and in his public statements -- as well as what sources said he told Smith's investigators -- he has said he didn't have concerns about widespread fraud, but instead about "irregularities" in how elections were managed.
A spokesperson for Smith and a spokesperson for Pence both declined to comment to ABC News.
In an overnight court filing, Trump's attorneys suggested -- without evidence -- that Pence may have been under pressure to incriminate Trump when he testified before the special counsel, given the Justice Department's separate investigation into Pence's handling of classified materials after leaving the White House.
In January of this year, Pence's attorneys notified the government of a handful of documents with classified markings that were found at his Indiana home, prompting the FBI to conduct a search where they found one additional classified document.
The DOJ's National Security Division informed Pence in June that they had closed their investigation into the matter, and that no criminal charges would be sought.
"The potential criminal charges faced by Vice President Pence gave him an incentive to curry favor with authorities by providing information that is consistent with the Biden Administration's preferred, and false, narrative regarding this case," Trump attorney Todd Blanche said in a filing Monday evening that was filed with the court before news broke regarding the details of what Pence told investigators.
Blanche, in the filing, asks a judge to compel the government to hand over all information related to the government's investigation of Pence's handling of classified information, arguing it could have bearing on his "credibility and bias" as a potential witness against Trump.
The filing could telegraph a potential strategy Trump's attorneys hope to use to undercut Pence's credibility should he be called as a trial witness in the federal election interference case.
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