Former Vice President
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.
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.
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
Smith subpoenaed Pence and and former National Security Adviser
As vice president, Pence oversaw the joint session of Congress on Jan. 6 to certify
Pence’s plans to challenge the subpoena were reported earlier by Politico.
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.”
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.
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
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.)
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