According to two sources who are knowledgeable of Mike Pence’s position, he is ready to fight a grand jury subpoena for evidence about the effort by the late President Donald Trump to rig the 2020 election, POLITICO reports.
According to the sources, executive privilege is not a major factor in Pence’s decision to contest Special Counsel Jack Smith’s subpoena. Instead, Pence will assert that he is exempt from some Justice Department demands due to his prior position as president of the Senate, which makes him a member of the legislative branch.
According to media reports last week, the special counsel overseeing investigations into sensitive documents discovered at former President Trump’s Mar-a-Lago house and plots to rig the 2020 election subpoenaed Pence and former national security advisor Robert O’Brien, Reuters reports.
POLITICO says that Pence’s supporters assert that he is protected by the “speech or debate” article of the constitution, which shields members of Congress from lawsuits arising out of their official duties. Allies of Pence claim that the provision forbids federal prosecutors from requiring Pence to testify regarding the key elements of Smith’s probe. They assert that Pence’s testimony would threaten the separation of powers that the Constitution aims to protect.
“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said one of the sources, per 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.”
It’s still challenging to foresee how the courts would rule on the issue. Despite the Constitution containing no mention of the executive privilege exercised by presidents, the Supreme Court has regularly affirmed it.
Rep. Scott Perry (R-Pa.), who is utilizing the same constitutional safeguards to keep his conversations hidden from Smith and his crew, is currently the target of a grand jury investigation that the GOP House is resisting.
Despite Perry’s arguments that the “speech or debate” provision should prevent prosecutors from accessing his phone, which the FBI confiscated last year, a federal court ruled against him in December. Perry is a crucial supporter in Trump’s campaign for a second term.
Oral arguments in the case are expected for February 23 by an appeals court, which quietly placed that decision on hold last month. On Monday, the House submitted a long brief in support of Perry’s claim.
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