Pence to fight special counsel subpoena on Trump’s 2020 election denial

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Pence to fight special counsel subpoena on Trump’s 2020 election denial

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.

Former Vice President Mike Pence speaks at the Heritage Foundation.

Former Vice President Mike Pence’s planned argument comes on the heels of an FBI search of two of his homes after his attorney voluntarily reported classified material. | J. Scott Applewhite/AP Photo


02/14/2023 05:01 AM EST

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.”

Pence’s planned argument comes after an FBI search that followed his attorney’s voluntary report of classified material in his possession last month — drawing him into a thicket of document-handling drama that’s also ensnared Trump and President Joe Biden. While Pence aides say he’s taking this position to defend a separation of powers principle, it will allow him to avoid being seen as cooperating with a probe that is politically damaging to Trump, who remains the leading figure in the Republican Party.

Pence says he takes ‘full responsibility’ for classified docs found at homeShare

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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.

“It is admittedly a constitutionally murky area with no clear outcome,” said Mark Rozell, a George Mason University political scientist who specializes in executive privilege. “Since there is a legislative function involved in the vice president presiding over the Senate, a court very well could decide that it must address the scope of the speech or debate privilege and whether it would apply in this case.”

Although vice presidents aren’t technicall

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