Former Vice President Mike Pence is reportedly planning to oppose a grand jury subpoena from the Department of Justice (DOJ) that is seeking his testimony and any documents he has relating to former President Donald Trump’s attempt to overturn the 2020 presidential election.
The DOJ’s investigation into Trump, led by special counsel Jack Smith, is examining Trump’s actions on January 6, 2021, the day of the attack on the U.S. Capitol building by a mob of his loyalists. The investigation is also looking into a scheme by the Trump campaign team to use fake electors to upend the Electoral College certification ceremony, which Pence presided over in his role as vice president.
Though Trump had tried to enlist Pence in the plot, the former vice president had refused to go along with it after his lawyers said it could be illegal. Trump continued to pressure Pence while the attack on the Capitol was unfolding, even as his loyalists gathered outside the White House chanting that Pence should be hanged.
While Pence has denounced the former president’s actions that day, he has not cooperated with investigations to determine the extent of Trump’s role in the attack — most notably the investigation by the House select committee in the last session of Congress.
Pence had attempted to justify his refusal to cooperate by claiming that the January 6 committee had “no right” to his testimony due to his executive privilege. His strategy to oppose the subpoena from the DOJ — which is part of the executive branch — is claiming that his role as president of the Senate, which is conferred on to vice presidents by the Constitution, renders him unable to divulge his conversations regarding the attack.
At issue is the “Speech or Debate” Clause in Article I Section 6 of the Constitution, which says that, “for any speech or debate in either House, [legislative lawmakers] shall not be questioned in any other place.”
“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature. He feels it really goes to the heart of some separation of powers issues,” one source with knowledge of Pence’s plan said to Politico.
Pence will address his plan to oppose the subpoena when he makes a public appearance in Iowa on Wednesday, sources say.
Legal experts have questioned Pence’s strategy to use the “Speech or Debate” clause to shield himself from testifying.
“Pence claiming protection under that clause…seems like a stretch,” said Noah Bookbinder, president of the nonprofit government watchdog group Citizens for Responsibility and Ethics in Washington (CREW).
Pence, who is likely to announce a 2024 presidential run, may be refusing to cooperate with the subpoena in order to avoid alienating far right voters he’ll need to win the GOP nomination.
“This feels to me more like Pence trying to maintain political support by not cooperating with the 1/6 special counsel investigation than a strong legal position,” Bookbinder said. “It’s disappointing because Pence knows firsthand how important accountability for this attack on our democracy is.”
Former U.S. acting Solicitor General Neal Katyal has also questioned Pence’s strategy.
“This doesn’t seem particularly strong, especially in light of the criminal nature of the 1/6 investigation,” Katyal tweeted.
Katyal pointed out that the Democratic-controlled Senate could compel Pence to cooperate through a subpoena, saying such a move is “something they can&should do immediately.”
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