Vice President Mike Pence Faces Legal Battle with DOJ Over Grand Jury Subpoena

Former Vice President Mike Pence is facing a battle between the Biden Justice Department (DOJ) and Donald Trump over whether he should testify before a grand jury as part of an investigation into the January 6 attack on the Capitol. Trump has indicated he intends to assert executive privilege to shield Pence from being questioned by the DOJ.

Pence has asserted that he is protected by the Speech or Debate Clause in the Constitution, which protects legislators from law enforcement actions.^[0] The former vice president said, “The idea of subpoenaing a former vice president to testify in court against the president, with whom he served, I believe is unprecedented in American history. But as I said last week, I also think it’s unconstitutional.”^[1]

Special Counsel Jack Smith had issued a subpoena for Pence to testify, but Pence is now contesting the subpoena in court.^[2] The DOJ had previously asked a judge to compel Pence’s appearance before the grand jury, as reported by CNN.^[3] The duration of the sealed proceedings is unknown, however, it is feasible that the district court may settle the disagreement or it may be taken up to a federal appeals court and even, potentially, the US Supreme Court.^[0]

A grand jury subpoena has been given to Vice President Pence in relation to the occurrences of January 6, 2021, when the US Capitol was stormed by pro-Trump demonstrators as Congress was in the process of certifying the 2020 election results.^[3]

Even if speech or debate protection applies to Pence, it is likely that Special Counsel Jack Smith and the grand jury want to ask Pence questions that fall outside the scope of his legislative capacity.^[4] Wright and Goodman propose that queries could be made concerning “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 expressed in Pence's recent book.^[4] Goodman and Wright posit that questions of this nature would be allowed under the Speech or Debate Clause.^[4] However, it may be difficult to determine whether certain lines of inquiry relate to Pence’s legislative, or official but nonlegislative, or personal/political capacity without hearing the specific question(s) at issue in context.^[4] Senator Lindsey Graham (R-S.C.) is an example^[4]

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. “Trump tries to block Pence testimony in Jan. 6 investigation” Washington Examiner, 4 Mar. 2023, https://www.washingtonexaminer.com/news/justice/trump-block-pence-testimony-jan-6-investigation

2. “Eager to avoid special counsel testimony, Pence makes flawed case” MSNBC, 27 Feb. 2023, https://www.msnbc.com/rachel-maddow-show/maddowblog/eager-avoid-special-counsel-testimony-pence-makes-flawed-case-rcna72421

3. “Trump seeks to block Pence's grand jury testimony in 2020 election interference probe – Local News 8” LocalNews8.com, 4 Mar. 2023, https://localnews8.com/politics/cnn-us-politics/2023/03/04/trump-seeks-to-block-pences-grand-jury-testimony-in-2020-election-interference-probe

4. “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