The former vice president is prepared to raise a novel claim of legislative privilege to challenge a bid for his testimony in the 2020 election probe.
Mike Pence is preparing to resist a grand jury subpoena for testimony about former President Donald Trump’s push to overturn the 2020 election, according to two people familiar with the former vice president’s thinking.
Pence’s decision to challenge Special Counsel Jack Smith’s request has little to do with executive privilege, the people said. Rather, Pence is set to argue that his former role as president of the Senate — therefore a member of the legislative branch — shields him from certain Justice Department demands.
Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the “speech or debate” clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.
“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said one of the two people familiar with Pence’s thinking, who spoke on condition of anonymity to discuss his legal strategy. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”
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Pence is preparing to launch a presidential campaign against his onetime boss. Aides expect the former vice president to address the subpoena — and his plans to respond it — during a visit to Iowa on Wednesday.
But regardless of its political consequences, the argument from Pence’s camp means Smith could be in for a legal mess.
That’s because the legal question of whether the vice president draws the same “speech-or-debate” protections as members of Congress remains largely unsettled, and constitutional scholars say Pence raising the issue will almost certainly force a court to weigh in. That could take months.
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NEWS: Mike Pence is planning to resist special counsel Jack Smith’s subpoena.
His reason? It violates the separation of powers; after all, Pence was president of the Senate on Jan. 6 — an officer of Congress.
Details w/ @joshgerstein https://t.co/4SzERqHv0g
— Kyle Cheney (@kyledcheney) February 14, 2023
NEW: Mike Pence said today that he’s willing to take his fight against Jack Smith’s subpoena to the Supreme Court.
And he confirmed publicly that he intends to argue he was a “legislative official” immune from DOJ inquiry.
w/ @joshgerstein https://t.co/Q0fMbfNEL8
— Kyle Cheney (@kyledcheney) February 15, 2023
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