Bloomberg Law
Feb. 14, 2023, 4:56 PM

Pence to Challenge Special Counsel Subpoena in Trump Probe (2)

Mark Niquette
Mark Niquette
Bloomberg News

Former Vice President Mike Pence is planning to press a novel challenge to a grand jury subpoena from the special counsel investigating Donald Trump and his allies, arguing the separation of powers shields him.

There’s a robust history of members of Congress successfully invoking that constitutional shield against criminal probes and civil lawsuits, but whether a former vice president can claim it is a largely untested question. At a minimum, any legal fight is likely to drag out whatever timeline the special counsel, Jack Smith, had hoped for in getting Pence before the grand jury.

John “Jack” Smith
Source: US Department of Justice

Pence will resist the subpoena using the argument he was acting as president of the Senate during the Jan. 6, 2021, insurrection, when a mob of Trump supporters tried to stop the counting of Electoral College votes at the US Capitol, according to a person familiar with his plan.

“This would surely prompt a court challenge,” said Melissa Murray, a professor at New York University School of Law. The section of the Constitution at issue, known as the Speech or Debate Clause, has been litigated only with respect to members of Congress. Whether the vice president is afforded those same protections is “a pretty murky area,” said Murray.

Broad Application

Although the clause refers to “speech or debate,” the US Supreme Court and lower courts have long held that it should be interpreted broadly to apply to a wide swath of legislative activity. There has been scholarly research suggesting it could apply to a vice president performing the Senate role.

Pence may claim he is protected against a Jan. 6-related subpoena since he was trying to figure out what his official duties involved in responding to pressure to interfere in the electoral count certification, said Michael Gerhardt, a law professor at the University of North Carolina at Chapel Hill. But any information Pence has about illegal actions he was asked to take would probably not be covered by the clause, said Gerhardt.

Smith subpoenaed Pence and and former National Security Adviser Robert O’Brien as part of his investigation into efforts by Trump and others to overturn the 2020 presidential election. Smith is also investigating the former president’s handling of classified documents that were found at his Mar-a-Lago resort.

As vice president, Pence oversaw the joint session of Congress on Jan. 6 to certify Joe Biden’s victory and wouldn’t follow Trump’s demands to reject Electoral College votes from key swing states. Pence has said the Constitution didn’t give him that power.

Pence’s plans to challenge the subpoena were reported earlier by Politico.

‘Terrible Precedent’

The former vice president also declined to testify before the former House committee investigating the Jan. 6 attack based on the separation of powers. He told CBS in an interview last November that Congress “has no right to my testimony” and that it would set “a terrible precedent for the Congress to summon a vice president of the United States to speak about deliberations that took place at the White House.”

Latest: Trump Grand Jury Excerpts on 2020 Georgia Vote to Be Made Public

US Senator Lindsey Graham of South Carolina tried using the Speech or Debate Clause to avoid testifying before a state grand jury investigating Trump’s efforts to overturn his 2020 election loss in Georgia, but a federal judge rejected that argument and ordered him to testify.

Pence is among multiple Republicans considering challenging Trump for the Republican presidential nomination for the 2024 race after Trump announced his third White House bid in November. Nikki Haley, the former South Carolina governor and ambassador to the UN, announced her candidacy in a video posted online Tuesday morning.

Breaking With Trump

While Pence touts the achievements of the “Trump-Pence” administration when meeting with donors and potential voters, he has broken with Trump publicly over the former president’s efforts to overturn the election and such matters as Trump’s meetings with White supremacists and anti-Semites.

Trump and his hard-core supporters have never forgiven Pence for refusing to reject the Electoral College votes on Jan. 6, just before a mob of Trump supporters stormed the Capitol chanting “Hang Mike Pence.”

Federal authorities discovered a document with classified markings during a search of Pence’s Indiana home on Feb. 10, adding to a batch discovered last month. The former vice president had brought in a lawyer to search his home on Jan. 16 “out of an abundance of caution” following recent reports about the discovery of classified material at Biden’s home in Delaware.

Pence has said he wasn’t aware classified records were sent to his home after he left office and that he’s cooperating with the inquiry.

(Updates with additional details, context and analysis throughout, starting in second paragraph.)

--With assistance from Zoe Tillman.

To contact the reporters on this story:
Mark Niquette in Columbus at;
Sabrina Willmer in Washington at

To contact the editors responsible for this story:
Mario Parker at

Elizabeth Wasserman, Peter Jeffrey

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