Ex US VP Mike Pence must testify to January 6 grand jury, Judge rules

A federal judge has ordered former Vice President Mike Pence to appear in front of a grand jury investigating former President Donald Trump’s attempts to overturn the 2020 election, largely sweeping aside two separate legal efforts by Pence and Trump to limit his testimony, according to two people familiar with the matter.

The twin rulings Monday, by Judge James E. Boasberg in U.S. District Court in Washington, were the latest setbacks to bids by Trump’s legal team to limit the scope of questions that prosecutors can ask witnesses close to him in separate investigations into his efforts to maintain his grip on power after his election defeat and into his handling of classified documents after he left office.

In the weeks leading up to the Capitol attack by a pro-Trump mob on Jan. 6, 2021, Trump repeatedly pressed Pence to use his ceremonial role overseeing the congressional count of Electoral College votes to block or delay certification of his defeat.

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Prosecutors have been seeking to compel Pence to testify about Trump’s demands on him, which were thoroughly documented by aides to Pence in testimony last year to the House select committee that investigated the Jan. 6 riot and what led up to it.

This month, Trump’s lawyers asked Boasberg’s predecessor as chief judge for the court, Beryl A. Howell, to limit Pence’s testimony by claiming that certain issues were off limits because of executive privilege, which protects certain communications between the president and some members of his administration.

At the same time, lawyers for Pence asked to limit his testimony by arguing that his role as the president of the Senate meant he was protected from legal scrutiny by the executive branch — including the Justice Department — under the Constitution’s “speech or debate” clause. That provision is intended to protect the separation of powers.

While Boasberg issued a clear-cut ruling against Trump’s attempts to assert executive privilege, his ruling on the “speech or debate” clause was more nuanced, according to a person familiar with the matter.

The judge affirmed the idea that Pence had some protection under “speech or debate” based on his role in overseeing the certification of the election inside the Capitol on Jan. 6. But Boasberg also said that Pence would have to testify to the grand jury about any potentially illegal acts committed by Trump, the person familiar with the matter said.

People close to Pence have said for weeks that they expected he would have to testify to some degree to the grand jury. The New York Times reported that the Justice Department had been seeking an interview with Pence as far back as late last year.

Boasberg’s decisions concerning Pence came a little more than week after Howell issued a ruling that more than a half dozen other former Trump administration officials — including Mark Meadows, Trump’s final chief of staff — could not invoke executive privilege to avoid testifying to the grand jury investigating Trump’s attempts to overturn the election.

The ruling by Howell, who stepped down as chief judge on March 17, paved the way for grand jury testimony from Meadows; one of his deputies, Dan Scavino; Robert C. O’Brien, who served as national security adviser; John Ratcliffe, the former director of national intelligence; and Stephen Miller, one of Trump’s speechwriters and top advisers.

Trump and some witnesses in the election inquiry have tried for months to limit their scope of grand jury testimony, prompting a pitched behind-the-scenes battle waged — like all issues involving grand juries — in sealed court filings and closed-door hearings.

Pence was one of the last major witnesses to litigate the boundaries of his grand jury testimony. Two of his closest aides — Marc Short and Greg Jacob — were ordered to appear before the grand jury last year, as were two top lawyers in Trump’s White House, Pat A. Cipollone and Patrick F. Philbin.

In one of her final acts as chief judge, Howell issued a similar ruling in the classified documents inquiry. She ordered that M. Evan Corcoran, a lawyer for Trump, would have to testify to the grand jury conducting that investigation in spite of assertions of attorney-client privilege he had made on Trump’s behalf.

In making her decision, Howell found that prosecutors in the office of the special counsel, Jack Smith, who is overseeing both grand jury investigations, had met the threshold for what is known as the crime-fraud exception. That allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or services were used to further the commission of a crime.

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In the federal inquiry into Trump’s efforts to remain in power, Pence has always been a potentially important witness given the central role he played by refusing to go along with Trump’s demands on Jan. 6 and the conversations he participated in at the White House in the weeks preceding the riot.

In public and in private, Trump tried to pressure Pence to take part in a plan to reject certification of Joe Biden’s Electoral College victory.

Urging Pence to agree to flout the Constitution on the critical date of Jan. 6 was part of a plan by Trump supporters that also included creating at least the appearance that there were alternate slates of pro-Trump electors from swing states that had clearly been won by Biden. The electors’ plan is under scrutiny by federal prosecutors as part of the investigation being led by Smith, the special counsel overseeing the Trump-related investigations for the Justice Department.

Between Nov. 5, 2020, and Jan. 6, Pence was subjected to an intense pressure campaign from a range of Trump’s associates outside the government, including John Eastman, a lawyer working with the president, and from Trump himself. During that time, Pence had his counsel research what his powers were with regard to Jan. 6, and then, over time, made clear to Trump that he did not believe he had the authority that the president insisted he did.

In addition to shedding light on Trump’s role, testimony from Pence could also be important in the inquiry into other people involved in the efforts to keep Trump in office, including Eastman.

By Jan. 5, Trump’s efforts had become so intense that Short, Pence’s chief of staff, called the vice president’s lead Secret Service agent to his West Wing office to tell him that Trump was going to turn on Pence, and that they may have a security risk because of it.

The next day, Trump publicly pressured Pence in a rally address to a pro-Trump crowd at the Ellipse near the White House, then urged his followers to march “peacefully” and “patriotically” to the Capitol. Once there, hundreds swarmed the building, some chanting “Hang Mike Pence!”

Pence, who is considering a presidential campaign of his own, has since published a memoir in which he details some of the conversations that investigators are interested in having him speak to in a closed setting.