Mike Pence to fight Trump subpoena under constitutional clause

Former Vice President Mike Pence will argue that he is shielded from complying with a subpoena issued last week by the special counsel investigating Donald Trump’s role in the Capitol riot because he was acting as an officer of Congress in his role as president of the Senate on Jan. 6, 2021.

Pence, 63, believes he is protected from testifying against his former boss by the constitutional “Speech or Debate Clause,” which says lawmakers cannot be arrested or questioned for conducting legislative business, sources told Politico Tuesday.

The clause legally bars special counsel Jack Smith from forcing Pence to testify, because the veep was acting in a legislative — rather than executive — capacity while leading the congressional count of 2020 Electoral College votes, the theory goes.

“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” one of the sources familiar with Pence’s mindset told the news outlet.

“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.”

While Pence was not technically a member of Congress on Jan. 6, then-President Trump’s months-long campaign to pressure him not to certify the results was focused on his role as the Senate president, which some legal scholars say could boost his claim of immunity.

“I do think there’s a plausible argument here,” Josh Chafetz, a Georgetown University constitutional law professor, told Politico. “And I’d be surprised if Pence doesn’t eventually make it. After all, a lot of the action here took place in terms of arguments about how he should rule from the chair.”

“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 the outlet.

“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.”

The legality of whether the vice president is protected under the clause in the same way lawmakers are would almost certainly need to be decided by a court, which could take months.

Pence was set to address his plans to respond to the subpoena during a Wednesday visit to the early caucus state of Iowa as he explores a potential run for the 2024 Republican presidential nomination against his former boss, the article said.

The legal maneuvering came as Trump’s lawyers planned to fight the subpoena of Pence on executive privilege grounds, according to CBS News.

Pursuing an exemption under the Constitution would also give the former vice president political cover, since Trump remains the face of the GOP.

Pence told ABC News last year that he believe Trump’s claims of election fraud were “reckless,” and said the former president had “endangered me and my family and everyone at the Capitol building” when his supporters stormed the building on Jan. 6 to try to prevent the certification of the 2020 contest.

The Politico report came four days after an additional classified document was found by the FBI at Pence’s Indiana home, weeks after he turned over two boxes of secret documents to the bureau.

Pence claimed he had inadvertently held onto the documents after leaving office and turned them in as Smith investigated a trove of classified papers found at Trump’s Florida resort and another Justice Department special counsel probes classified documents found in President Biden’s possession dating to his days as a senator.