Former Vice President Mike Pence is reportedly planning to fight a grand jury subpoena from the Justice Department that would require him to testify about former President Donald Trump’s role in the Jan. 6, 2021, riot at the U.S. Capitol.
Sources familiar with Pence’s plans offered details Tuesday to Politico, NBC News and The New York Times, saying Pence plans to argue that the vice president’s duties as president of the Senate protect him from such legal scrutiny, and that he intends to cite the U.S. Constitution’s “speech or debate clause.”
That provision is intended to safeguard congressional officials from legal proceedings associated with their work, but legal scholars say it’s unclear whether those protections extend to the vice president, who’s tasked with breaking ties in the chamber but is not considered a senator.
“It is admittedly a constitutionally murky area with no clear outcome,” Mark Rozell, a George Mason University political scientist who specializes in executive privilege, told Politico on Tuesday.
Sen. Lindsey Graham (R-S.C.) similarly tried to invoke the constitutional provision to avoid testifying before a Georgia grand jury investigating Trump’s alleged attempts to subvert the election results there. But a federal appeals court ruled last fall that the argument was not applicable, concluding that Graham was not conducting legislative activity when he allegedly asked Georgia election officials if they could disqualify mail-in ballots in counties with signature errors.
A court’s decision on Pence’s argument may also hinge on whether his presiding over the counting of Electoral College votes on Jan. 6, 2021, constituted legislative business.
News first broke last week that Special Counsel Jack Smith, who the Justice Department appointed to oversee its investigations into Trump, had subpoenaed Pence. In addition to leading the probe into Trump’s actions around the Jan. 6 riot, Smith is supervising a probe exploring the alleged mishandling of classified government records found at Trump’s Mar-a-Lago estate in Florida last year.