A federal judge has decided that former Vice President Mike Pence must testify to a grand jury about conversations he had with Donald Trump leading up to January 6, 2021, according to multiple sources familiar with a recent federal court ruling.
But the judge said – in a ruling that remains under seal – that Pence can still decline to answer questions related to his actions on January 6 itself, when he was serving as president of the Senate for the certification of the 2020 presidential election, according to one of the sources.
Pence still has the ability to appeal. Trump has repeatedly lost executive privilege assertions he’s tried to make in the special counsel’s investigation.
It’s another win for special counsel Jack Smith, who is investigating the Trump-aligned effort to subvert the 2020 election. Smith subpoenaed Pence for testimony and documents earlier this year.
Days after news broke of the subpoena, Pence and his advisers indicated that the former vice president would challenge the subpoena under the Constitution’s Speech or Debate Clause, which shields lawmakers from certain law enforcement actions connected to their legislative duties.
“I am going to fight the Biden DOJ subpoena for me to appear before the grand jury because I believe it’s unconstitutional and unprecedented,” Pence said at an event in February. He has suggested that – because he was also serving as president of the Senate during the January 6 certification vote – the constitutional clause covered the conduct that investigators are looking at.
The challenge in court has played out in secret, in front of Judge James Boasberg, who recently became chief judge of DC’s federal district court.
Pence’s claims, as he has described them publicly, are seen as novel. His arguments attracted criticism from a broad range of legal scholars, including former Judge Michael Luttig, a conservative legal luminary who advised Pence on how he should approach the 2021 certification vote.
Even as Pence has fought the subpoena, he has stood by his refusal to disrupt the congressional certification of President Joe Biden’s win, as Trump called upon him to do.
