Where Things Stand: Pence Officially Moves To Block Jack Smith Subpoena

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NEW YORK, NEW YORK - FEBRUARY 22: Mike Pence visits FOX News Channel's "The Story With Martha MacCallum" at Fox News Channel Studios on February 22, 2023 in New York City. (Photo by Dia Dipasupil/Getty Images)
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Vice President Mike Pence officially moved to block a federal grand jury subpoena for his testimony on events surrounding Jan. 6 on Friday, arguing, as he was expected to, that he is shielded by the Constitution’s Speech and Debate Clause from being compelled to testify about some of the topics that appear to be at the heart of special counsel Jack Smith’s probe.

CNN was first to report that Pence’s team officially filed the motion asking a judge to block the order — on the same day that Donald Trump’s team tried to block the same subpoena, citing executive privilege claims.

So, while Trump is using the same playbook to block the Pence subpoena that he’s used to fight other aides and allies’ testimony in various probes tied to the Jan. 6 insurrection, Pence is going another route. His team is arguing that he cannot testify on matters related to the certification of the 2020 election because his actions that day were rooted in his duty as president of the Senate, which is a legislative branch role. Members of Congress can use the Speech and Debate Clause as a legal defense, and Trump-allies have also invoked it to try to get out of testimony in other Jan. 6 probes. Sen. Lindsey Graham (R-SC) used it to try to fight a grand jury’s calls for his testimony in the Fulton County investigation.

Pence is reportedly trying to block the part of the subpoena requesting testimony on his “legislative functions” that day, in CNN’s words. DOJ special counsel Jack Smith is interested in Pence’s interactions with the former president on the days leading up to the 2020 election through to the attack on the Capitol on Jan. 6. Smith has requested documents and testimony related to those events.

Pence has reportedly not shut down cooperating entirely, per CNN:

His team previously indicated to the Justice Department that he’d be open to answering questions if they were limited to the matters he had previously discussed publicly, including in his book, a source told CNN. …

Trump huddled with several members of his legal team at his Mar-A-Lago resort in Palm Beach last week to discuss Smith’s investigations, according to a source familiar with the meeting.

My colleague David Kurtz broke down why Pence may be setting himself up for a long fight when Politico first reported that the former Veep’s team was considering invoking the Speech and Debate Clause to fight the subpoena. Per David:

  • Legal experts tell Politico there’s an arguable basis for Pence’s Speech and Debate Clause defense but that it remains an unsettled area of law, meaning a court fight could drag on for some time.
  • The Justice Department itself has previously argued that the vice president in his role as Senate president is covered by the Speech and Debate Clause, but the exact scope and contours of the legislative immunity it offers remain unclear and largely untested.
  • Pence’s lawyer is Emmet Flood, who represented then-Vice President Dick Cheney in the Valerie Plame affair. Cheney was of course renowned for exploiting the unique dual-hat role of the vice presidency as an executive and legislative branch official to secure and maximize his power.

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