Mike Pence Subpoenaed by Special Counsel in Trump Investigation

On Thursday, reports surfaced that former Vice President Mike Pence has been subpoenaed by special counsel Jack Smith as part of the Department of Justice investigation into former President Donald Trump. Smith's office is seeking documents and testimony related to Pence's interactions with Trump leading up to the 2020 election and the attack on the U.S. Capitol on January 6, 2021.

Pence's team is expected to argue that his role as president of the Senate during his time in office means that under the Constitution's “speech or debate” clause, he does not have to testify, said the person familiar with the matter, who spoke on the condition of anonymity to reveal internal deliberations. Pence's team had been in negotiations with Smith for potentially limited cooperation before being served last week with the subpoena, which Pence's side is said to have viewed as a surprise.

The FBI is also conducting a search at Pence's Indiana home for classified materials, according to a source familiar with the matter as well as a Justice Department official.[0] The search follows a discovery, relayed by Pence's representatives to the National Archives and Records Administration last month, that documents bearing classified markings had been, they said, “inadvertently” boxed up and found in the former vice president's home in Indiana.[1]

Pence's role in presiding over the electoral certification process made him a central figure in the January 6 proceedings.[2] Leading up to the mob's attack on the Capitol, President Trump had put Vice President Mike Pence under immense pressure to reverse the outcome of the 2020 election.[2] Pence was also present during several critical meetings with Trump and his allies ahead of January 6.[2]

The vice president is also seen as a key witness in the investigation, given his proximity to Trump.[3] Pence's legal challenge rests not on executive privilege but rather on his former legislative role as president of the Senate, according to a report in Politico.[4] Pence's advisers argue that a constitutional provision known as the “speech or debate” clause shields congressional officials from legal proceedings stemming from their work.

Some experts have pointed to the recent 11th Circuit Court of Appeals decision that paved the way for Senator Lindsey Graham (R-S.C.) to testify to local investigators in Georgia.[5] The court ruled that Graham could be compelled to testify so long as investigators steered their questions away from anything involving his legislative responsibilities.[6] The Supreme Court later declined to step in.[5]

0. “FBI finds another classified document in search of Mike Pence's home, his spokesman says” CNBC, 10 Feb. 2023, https://www.cnbc.com/2023/02/10/fbi-searching-ex-trump-vp-pence-home-for-classified-docs.html

1. “Trump news – live: Trump to testify in E Jean Carroll defamation case as feds raid Pence home” The Independent, 11 Feb. 2023, https://www.independent.co.uk/news/world/americas/us-politics/donald-trump-facebook-mike-pence-subpoenaed-b2279710.html

2. “Pence's subpoena could set up an executive privilege test with Trump” NPR, 11 Feb. 2023, https://www.npr.org/2023/02/11/1156205144/mike-pence-subpoena-executive-privilege

3. “Pence to fight subpoena from special counsel investigating Trump in January 6 investigation” CNN, 14 Feb. 2023, https://www.cnn.com/2023/02/14/politics/mike-pence-subpoena-special-counsel/index.html

4. “Pence Preparing to Challenge Grand Jury Subpoena on Constitutional Grounds” National Review, 14 Feb. 2023, https://www.nationalreview.com/news/pence-preparing-to-challenge-grand-jury-subpoena-on-constitutional-grounds/

5. “Pence to fight special counsel subpoena on Trump's 2020 election denial” POLITICO, 14 Feb. 2023, https://www.politico.com/news/2023/02/14/pence-subpoena-trump-election-00082637

6. “Pence to challenge subpoena from special counsel Jack Smith” CBS News, 14 Feb. 2023, https://www.cbsnews.com/news/pence-to-challenge-special-counsels-subpoena/