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Trump Appeal of Pence DOJ Testimony Ruling Will Likely Fail, Experts Say

Trump’s strategy of using executive privilege claims to block Pence’s testimony is “a surefire loser,” one critic said.

Former Vice President Mike Pence speaks at the National Review Institute's 2023 Ideas Summit on March 31, 2023, in Washington, D.C.

Lawyers for former President Donald Trump are appealing a recent ruling from a federal judge that former Vice President Mike Pence must appear before a grand jury in the Department of Justice’s (DOJ) investigation into the attack on the U.S. Capitol building and Trump’s efforts to overturn the 2020 presidential election.

Both Trump and Pence attempted to block a grand jury subpoena, issued by special counsel Jack Smith in February, that ordered Pence to testify regarding his knowledge of Trump’s plans to usurp the election. Trump tried to block the subpoena on grounds that letting Pence speak to the grand jury would violate his executive privilege, a claim that has been rejected numerous times by federal appellate courts and the Supreme Court in other investigations into Trump’s alleged wrongdoings. Pence, on the other hand, argued that because he was president of the Senate during the January 6 Capitol attack, he was protected by the Constitution’s “speech and debate” clause, which allows legislators to refrain from testifying on matters related to Congress’s work.

Judge James Boasberg of the District Court for the District of Columbia ruled fully against Trump’s arguments and partially against Pence’s. While Pence wouldn’t have to discuss matters related to his work as president of the Senate, Boasberg ruled, the former vice president would still have to provide documents and testify before the DOJ grand jury on his work in the executive branch, and would be required to answer questions from Smith and other prosecutors related to alleged “illegality” on Trump’s part.

Pence has said that he will not appeal that ruling, announcing days after the verdict was reached that he was satisfied that his legislative privilege would be protected. “Having vindicated that principle of the Constitution, Vice President Pence will not appeal the Judge’s ruling and will comply with the subpoena as required by law,” a spokesperson for Pence told CBS News last week.

Paperwork filed by Trump this week suggests that the former president is seeking to appeal the ruling. Though details about the appeal have not been made public since it was formally docketed on Monday, it likely cites the executive privilege claims that have been repeatedly shot down.

Experts believe that Trump will fail spectacularly if that’s the case.

“Former President Trump was always destined to lose all of these executive privilege challenges,” former Obama White House counsel Neil Eggleston told CNN, adding that he would be “very surprised [if] the court of appeals or the Supreme Court would be remotely interested in this issue.” Eggleston cited numerous court rulings on executive privilege claims over the past decades, including rulings handed down during the Watergate era.

Last week, former Manhattan prosecutor Adam Kaufman said that an appeal based on executive privilege claims was likely destined for failure.

“[Trump] may seek to appeal” the ruling by Boasberg, Kaufman said. “It helps to delay and obfuscate. But it’s hard to imagine that it would be a successful appeal.”

Renato Mariotti, a former federal prosecutor, noted that Trump couldn’t use Pence’s arguments in his appeal, meaning it’s almost certain that the appeal rests on meritless executive privilege claims.

“Trump has standing to appeal the order compelling Pence to testify on Executive Privilege grounds only. He does not have standing to appeal the Speech and Debate Clause issues,” Mariotti said. “Unfortunately for Trump, the Executive Privilege issue is a surefire loser under settled law.”

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