testimony. he said while he was on a book tour last week that congress was not entitled to his testimony. i think there is some argument out there that the vice president doing this would set a bad precedent of sorts. sometimes arguments of precedent are made when people don t really want to cooperate. he has criticized the committee, saying that it was partisan or whatever. at the end of the day, if the justice department subpoenas him, there isn t really much that he can do. if trump is able not able to assert privilege, pence will have to cooperate. and it will be difficult for there to be privilege claim for a range of reasons. one of them is that trump doesn t control it anymore. the current president does. and i don t think biden is gonna allow trump to assert privilege to stop this. and pence has written about some of this in his book. so if he was able to put it in the book, maybe the government
branch. but the doj is part of the executive branch. so that argument doesn t exist anymore. and because he s openly accused trump of having recklessly endangered not only him but his wife and daughter who were present on capitol hill that day, i think he s waived the executive privilege argument as well. i don t know how he could protect himself against a legitimately issued subpoena to testify in the criminal case. okay. you don t believe he can protect himself. as paula notes, it s possible the president s legal team can assert some sort of privilege claim here. likely to win on that argument? i think they re likely not to win because publication of his book has really let the horse out of the wherever it s confined in washington. out of the barn, exactly. out of the barn. i guess there are barns in washington. in any event, it s waived i think. also, trump lawyers should have
two things. the congressional committee never subpoenaed pence. so there has never been a formal request for his testimony. he said while he was on book tour last week that congress was not entitled to his testimony. i think there s some argument out there that the vice president doing this would set a bad precedent of sorts, of some, you know, sometimes arguments of precedent are made when people don t really want to cooperate. he has criticized the committee, saying that it was partisan or whatever. at the end of the day, if the justice department subpoenas him, there isn t really much that he can do. if trump is not able to assert privilege, pence will have to cooperate. and it will be difficult for there to be a privilege claim for a range of reasons, one of them is that trump doesn t control it anymore, the current president does, and i don t think biden is going to allow trump to assert privilege to
chambers. joining me now to discuss a well bert toe gonzales, former u.s. attorney general under president george w. bush. alberto, welcome to the program. so let s start with that previous case that the doj cited saying that courts should be cautious before insisting upon an examination of records whoses disclosure would jeopardize national security even by a judge alone in chambers. is that an argument that you think that this court would likely find compelling? i do. i think, you know, the special master was hired to determine whether privilege any kind of privilege claim might apply to some of the documents that are at question here and the department made the argument before the 11th circuit that with respect to classified documents, highly unlikely that any of those would be subject to attorney/client privilege or subject to executive privilege, and the 11th circuit agreed. you know, obviously the supreme court, justice thomas because he is the presiding judge over the 11th c
president is making. and so now that has begun. one specific witness that i want to ask you about, we know that eric hershman a former white house attorney, i believe, was scheduled to give testimony on september 2nd. what is the latest with that? his testimony was delayed. at least some of this fight appears to be centered around him and some of the other witnesses who the former president has given these vague instructions, broad claims of privilege, which has caused this fight to evolve. and so how this works out will be a huge, huge thing for the justice department to get this information is key to before they make a decision on who gets charged, whether it s the former president himself, or some of the people who are around him who are trying to overturn the 2020 election. as our resident legal whiz on all the things, the privilege claim just generally right now, there s been a lot of questions in legal circles about how much validity it actually has.