Mike Pence Subpoenaed in Election Investigation: Court Battle Looms

Former Vice President Mike Pence is under increasing pressure as he faces a subpoena from Special Counsel Jack Smith in the criminal investigation into attempts to overturn the 2020 election result.^[0] Pence has indicated he will fight the subpoena, claiming it is unconstitutional and an unprecedented move.^[1] Mr. Pence is also invoking the Constitution’s Speech or Debate Clause in an attempt to shield himself from testifying.

Experts such as Wright and Goodman argue that the Speech or Debate Clause is unlikely to provide blanket protection to Pence, as the grand jury is likely to ask questions that fall outside of his legislative capacity. These questions could include inquiries into “Pence and his staff’s knowledge about and communications with and within the Trump Presidential Campaign” and “public speeches given outside of Congress”, such as those made in his recent book.^[2]

Wright and Goodman suggest that a court is unlikely to quash Pence’s subpoena in its entirety on the ground of speech or debate protection. They argue that the courts will require Pence to raise speech or debate objections on a question-by-question basis, similar to how Senator Lindsey Graham (R-S.C.) was required to do before a Georgia grand jury.^[2]

The Justice Department’s motion to compel Pence’s appearance before the grand jury was sealed on Friday and it is unclear how long it will take for the proceedings to unfold. Smith, who is reputed for his swiftness, has accelerated the probe’s pace since taking over the investigation.^[0]

The grand jury subpoena seeks documents and testimony related to the events of January 6, 2021, when the US Capitol was attacked by pro-Trump rioters as Congress prepared to certify the 2020 election results.^[3] It is possible that the dispute between Pence and the DOJ will be resolved in court, or will be appealed to a federal appeals court and perhaps, eventually, to the US Supreme Court.^[3]

0. “Trump asks court to block Pence's grand jury testimony in 2020 election interference probe” Local 3 News, 4 Mar. 2023, https://www.local3news.com/regional-national/trump-asks-court-to-block-pences-grand-jury-testimony-in-2020-election-interference-probe/article_3c59ff39-febc-5680-af9b-f77ec1855a8a.html

1. “Budowsky: Mike Pence, democracy and the Republican Party’s future” The Hill, 28 Feb. 2023, https://thehill.com/opinion/3876477-budowsky-mike-pence-democracy-and-the-republican-partys-future/

2. “How Much Can the Speech or Debate Clause Protect Mike Pence?” Lawfare, 27 Feb. 2023, https://www.lawfareblog.com/how-much-can-speech-or-debate-clause-protect-mike-pence

3. “Trump seeks to block Pence's grand jury testimony in 2020 election interference probe” WISH TV Indianapolis, IN, 4 Mar. 2023, https://www.wishtv.com/trump-seeks-to-block-pences-grand-jury-testimony-in-2020-election-interference-probe/