Former vice president Mike Pence has filed a motion asking a judge to block a federal grand-jury subpoena for his testimony relating to January 6. His legal team is arguing that he is protected by the Constitution’s “speech or debate clause.”
A source told CNN that the motion was filed Friday night. Special counsel Jack Smith is seeking documents and testimony related to January 6, 2021, and wants Pence to testify about his interactions with Trump leading up to the 2020 election and the day of the attack on the U.S. Capitol.
Attorney General Merrick Garland appointed Smith in November to oversee the investigation into the alleged efforts to overturn the 2020 election and Trump’s alleged mishandling of classified documents.
Whereas many would expect Pence to assert executive privilege as a former member of the second branch, Pence’s team has decided to go a different route, claiming legislative privilege. According to his team, Pence was also acting as president of the Senate on January 6, meaning he is shielded by the Constitution’s speech-or-debate clause, which protects lawmakers from certain law-enforcement actions targeted at their legislative duties.
As president of the Senate, the vice president breaks ties when the chamber is deadlocked. Every four years in January, he or she also leads the electoral-vote count that facilitates the transfer of power from one administration to the next.
“It is admittedly a constitutionally murky area with no clear outcome,” explained political scientist Mark Rozell to Politico. “Since there is a legislative function involved in the vice president presiding over the Senate, a court very well could decide that it must address the scope of the speech or debate privilege and whether it would apply in this case.”
Efforts to resist the subpoena could be complicated by the release of Pence’s memoir detailing his interactions with Trump leading up to January 6. His team previously indicated to the Justice Department that he’d be open to answering questions if they were limited to the matters he had previously discussed publicly.
Also on Friday, former president Donald Trump filed a separate, sealed motion attempting to prevent Pence from speaking to a grand jury on certain matters related to the probe on the grounds of executive privilege, as first reported by CNN. The motion argues that the president can shield aides from sharing internal communications.
However, some observers say Pence’s motion may prove to be more effective. Executive privilege has limits that can be overcome in criminal proceedings, while protections from the Constitution’s speech-or-debate clause have remained mostly impenetrable.
The U.S. Court of Appeals for the District of Columbia heard arguments in February in a similar case. Representative Scott Perry (R., Pa.) is attempting to shield access to his cellphone from January 6 investigators. He too is asserting legislative privilege.