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Former Vice President Mike Pence Subpoenaed by Special Counsel – Will Fight Subpoena on Constitutional Grounds

Former Vice President Mike Pence has been subpoenaed by the special counsel, Jack Smith, as part of the criminal investigation into efforts to overturn Donald Trump’s 2020 election loss.[0] Pence has indicated he will fight the subpoena, asserting that he is covered by the “speech or debate” clause of the Constitution due to his role as president of the Senate when he was certifying Electoral College votes.

Mr. Pence is claiming that he is immune from questioning under the Speech or Debate Clause of the Constitution by virtue of his position as vice president of the United States.[1] The Speech or Debate Clause is a provision that says what lawmakers say as part of their legislative duties cannot be questioned in legal proceedings.[2]

The motion to compel Pence to testify was filed before U.S. District Judge Beryl Howell in Washington and remains sealed.[2] CBS News was the first source to report it.[2] Merrick Garland, the Attorney General, appointed Jack Smith to serve as the special counsel for the investigation.[3] Smith requested that Pence testify, and after Pence declined, Smith issued a subpoena for Pence to testify.[3]

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.

The Justice Department had asked a judge to compel Pence’s appearance before the grand jury, CNN reported last week. Smith, known for acting swiftly, has increased the speed of the DOJ investigation into the attempts to reverse the 2020 election results since assuming control.[4]

The timeline of the sealed proceedings is uncertain; however, the dispute could be resolved by the district court, or the case may be brought before a federal appeals court and potentially the US Supreme Court.[4]

Pence himself told reporters last week that he would fight the subpoena and argued that subpoenaing a former vice president to testify in court against the president with whom they served is unprecedented and unconstitutional.

A grand jury subpoena has been issued to Pence, requesting documents and testimony concerning the insurrection at the US Capitol on January 6, 2021, when pro-Trump rioters stormed the building as Congress was certifying the 2020 election results. The Justice Department is trying to compel Mr. Pence to provide evidence to the grand jury, after he indicated he would fight a subpoena issued by special counsel Jack Smith.

0. “The Warning for Mike Pence | The New York Sun” The New York Sun, 26 Feb. 2023, https://www.nysun.com/article/the-warning-for-mike-pence

1. “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

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. “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/

4. “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