Federal judge orders Pence to testify before Jan. 6 grand jury about conversations with Trump

 March 29, 2023

A federal judge ruled in a sealed decision on Tuesday that former Vice President Mike Pence must testify before a grand jury as part of Special Counsel Jack Smith's investigation into the 2020 election aftermath and the Jan. 6 Capitol riot of 2021, the Daily Caller reported.

Smith subpoenaed Pence in February to provide documents and testimony with regard to his conversations with former President Donald Trump after the election but before and during the unrest at the Capitol building during the congressional certification of the electoral results.

Judge issues sealed order for Pence to make grand jury appearance

CNN reported that, according to multiple sources described as familiar with the ruling, while D.C. District Court Judge James Boasberg ruled that Pence must testify before a grand jury about his conversations with Trump ahead of Jan. 6, he may still refuse to answer questions about his own actions on that day while presiding over the certification process in his role as president of the Senate.

Special Counsel Smith and his investigators are likely interested in learning the full extent of the alleged pressure that Trump applied to Pence to purportedly overrule the reported electoral results during the certification process, as well as allegations of the former president's anger and frustration after the fact when the former VP failed to do so.

The outlet noted that this appears to be a "big win" for the special counsel, as he has now won more than a dozen court fights to compel witness testimony before the grand jury, though Pence could still appeal the ruling and delay or altogether avoid his impending grand jury appearance.

Pence's "novel" legal argument against grand jury testimony

Given the fact that Judge Boasberg's ruling is sealed, very few know exactly what his decision entailed, and while CNN chalked it up as another victory for Special Counsel Smith, it could be the case that former VP Pence scored a partial win of his own in the matter, in light of the "novel" and "untested" legal argument he intended to use in opposition to the subpoena.

Shortly after the subpoena had been issued in February, Politico reported that Pence planned to invoke the so-called "speech and debate" clause of Article I of the U.S. Constitution, which protects legislators from legal proceedings in connection with their work in Congress.

That normally wouldn't apply to a member of the executive branch, but vice presidents are in a unique position as both second-in-line to the presidency in the executive as well as president of the Senate body.

The theory, which has never been put forward in court until now, posits that Pence, in his role as Senate president and in light of his duty to preside over the congressional certification process, is covered by the "speech and debate" clause in the same way as any other lawmaker, and therefore cannot be compelled to testify with regard to his words or deeds in connection with that duty.

Thus, considering Judge Boasberg's reportedly split decision on Pence's testimony -- he must answer questions about his pre-Jan. 6 conversations with Trump but doesn't have to answer questions about his actions on Jan. 6 -- it seems possible that the judge conceded to Pence's novel legal argument at least in part.

Former VP considering next move

After the ruling was issued, former VP Pence appeared on Newsmax with host Greta Van Susteren and said, "Let me be clear: I have nothing to hide. I have a Constitution to uphold."

"I upheld the Constitution on Jan. 6," he asserted. "I believe we did our duty that day under the Constitution of the United States, and in this matter, I thought it was important that we stand on that constitutional principle again."

"But we're currently speaking to our attorneys about the proper way forward, and as I said we'll have a decision in the coming days," Pence added.

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