Mike Pence to fight special counsel subpoena using unique legal argument
Jack Birle
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Former Vice President Mike Pence is expected to challenge a subpoena from special counsel Jack Smith, who is investigating former President Donald Trump on various matters, including the Capitol riot on Jan. 6, 2021.
Pence is planning to use a novel legal argument to keep Smith and the subpoena at bay, invoking the speech or debate clause and appealing to the separation of powers rather than shielding himself with executive privilege, according to Politico. As vice president, Pence was acting as the president of the Senate on Jan. 6, and that, according to people familiar with his legal strategy, means he is covered by the protection affording lawmakers broad leeway while conducting legislative business.
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“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” one of the two people familiar with Pence’s thinking told Politico. “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.”
The plan to fight the subpoena comes as Pence is expected to announce a campaign of his own for the White House, setting up a direct run-in with his former boss.
While Pence’s team said it doesn’t plan on using executive privilege, a Trump lawyer said on Sunday the former president would attempt to exercise executive privilege over any testimony Pence would provide.
The subpoena for Pence was first reported last week, after Trump’s former national security adviser, Robert O’Brien, was also ordered to answer questions before the special counsel. Pence had been someone the now-defunct Jan. 6 committee had been considering subpoenaing or asking to testify but was never asked to. In November 2022, Pence told CBS’s Face the Nation that Congress had “no right to my testimony” on separation of powers grounds.
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The Trump investigations by the Justice Department were moved to Smith after Trump announced his third run for president in November 2022, with Attorney General Merrick Garland arguing the move was necessary due to President Joe Biden’s likely 2024 reelection bid.