Judge Orders Mike Pence To Testify To Grand Jury About Trump, But Not About Being A 'Senator'

Mike Pence is a man of faith. He believes many things, despite lacking any empirical evidence of their truth. Yes, even that he, Mike Pence, a guy with all the depth and charm of a "What Would Jesus Do?" bumper sticker, might one day become president of God's own US of America. Which is fine, of course. It's a free country, and we all need a hobby. But Mike Pence would like us to believe in childish fantasies, too, and therein lies the problem. Because the former vice president has declined to comply with a subpoena to testify to the grand jury investigating the events of January 6, 2021, and he'd like us to accept that he's doing it to protect the sacred integrity of the Constitution.

Mike Pence's theory, or more accurately, the one cooked up by his very good lawyers, is that he was acting as president of the Senate with regard to his role opening the envelopes containing state elector certifications. And so he claims legislative immunity under the Speech or Debate Clause that protects him from having to testify about anything related to that day.

“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” a source in Pence's camp told Politico. “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.”

Well, it's a lot. But Pence seems to have at least partially persuaded a federal court of the strength of this argument, since Chief Judge James Boasberg said this week that he does not have to answer Special Counsel Jack Smith's questions about what he did on January 6 specifically with regard to his "legislative" duties. As for the rest of it, he can start talking, though, since Judge Boasberg dropkicked Trump's attempt to use executive privilege to block Pence's testimony.

Judge Boasberg, who was originally nominated to the bench by George W. Bush, and then to the federal court in DC by Barack Obama, just took over as the chief judge when Judge Beryl Howell rotated out two weeks ago. Although the orders are sealed in these privilege disputes, it's clear that Judge Howell took a very dim view of Trump's efforts to use executive privilege to thwart the special counsel investigations. Indeed, there's no report that she ever sided with Trump, who made the claim at least half a dozen times. And as her final act, Judge Howell abrogated attorney-client privilege under the crime-fraud exception and ordered Trump's lawyer Evan Corcoran to testify to the grand jury investigating the documents Trump stole from the White House and stashed in his pool locker.

It's not clear whether Trump will appeal to the DC Circuit, although his win-loss record there appears to be no better than it was with Judge Howell. As for Pence, the sealed order means that we can't really tell specifically what he'd have to testify to if he showed up at the grand jury. Is everything but his actions when he was physically in the Senate fair game? Can he talk about his conversation with Trump the morning of January 6? Did Judge Boasberg craft his ruling with sufficient specificity to give the parties clarity on what's in and what's excluded?

“I’m pleased that the court accepted our argument and recognized that the Constitution’s provision about Speech and Debate does apply to the Vice President,” Pence told Greta van Susteren on Newsmax. “But the way they sorted that out, and the requirements of my testimony going forward, are a subject of our review right now, and I’ll have more to say about that in the days ahead.”

You can safely read that one as a HELL, YES. To the extent that Pence has a future in the Republican Party, he can't go pissing off the MAGA faithful by selling out the Dear Leader.

“We’re going to respect the decisions of the court, and that may take us to the highest court in the land,” he told ABC’s Jonathan Karl before the decision dropped. And here, where the special counsel is racing to wrap up his case before the 2024 election season, a delay is functionally as good as a win. If Pence can get the Supreme Court to wrinkle its brow for six months pretending to seriously contemplate his fakakta legislative immunity argument, then he's probably home free.

On the other hand, we may get more information from some of the other goodies Judge Howell left on her way out the door, specifically an order overruling the executive privilege claim to block testimony by Mark Meadows. As Salon points out, the former chief of staff had eyes on every aspect of the effort to overturn Biden's win. From the phone call pressing Georgia Secretary of State Brad Raffensperger to "find 11,780 votes, which is one more than we have," to coordinating speakers at Trump's pre-riot rally on the Ellipse, to organizing the Republican members of Congress to protest the electoral certification on a call where the supposedly spontaneous march on the Capitol was discussed, Meadows was there for it all. And judging by the texts he turned over to the January 6 Committee before he quit cooperating — five minutes after Trump's PAC gave a million dollars to his employer — Meadows has the goods on half of DC right there on his phone.

So maybe if Jack Smith doesn't get the goods from Uncle Mikey, he can get 'em from Cousin Mark.

Fingers crossed!


[WaPo / ABC]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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