Pence to Oppose Subpoena Seeking Testimony in Jan. 6 Inquiry

Former Vice President Mike Pence is planning to fight a federal grand jury subpoena compelling him to testify in the investigation into President Donald J. Trump’s actions leading up to the riot at the Capitol on Jan. 6, 2021, according to a person familiar with Mr. Pence’s plans.

Mr. Pence is expected to argue that the vice president’s role as the president of the Senate means that he is protected from legal scrutiny of his official duties by the Constitution’s “speech or debate” clause, intended to protect the separation of powers.

Such an approach would be novel and a departure from the more traditional argument that a vice president’s interactions with a president would be subject to executive privilege.

Mr. Pence’s plans were first reported by Politico.

The “speech or debate” clause shields members of Congress from law enforcement scrutiny over their statements and actions related to their legislative responsibilities. It specifically states that lawmakers “shall not be questioned in any other place” about their legislative duties.

It is not clear whether or how the Justice Department might argue against Mr. Pence’s effort to invoke the clause in this case.

Understand the Events on Jan. 6

  • Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.
  • A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.
  • Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.
  • Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.

A spokeswoman for Mr. Pence declined to comment, as did the Justice Department.

The former vice president was recently subpoenaed by prosecutors seeking his testimony in the investigation into Mr. Trump’s efforts to retain power after his 2020 election loss and how they led to the assault on the Capitol by a pro-Trump mob. Mr. Trump repeatedly pressured Mr. Pence to use his ceremonial role, as president of the Senate, overseeing the congressional certification of the Electoral College results on Jan. 6, 2021, to block or delay Joseph R. Biden Jr.’s victory.

Mr. Pence resisted, prompting Mr. Trump to denounce him at a rally near the White House before the certification began and telling his supporters to march to the Capitol in protest. Violence broke out once they arrived, with some of the rioters chanting, “Hang Mike Pence!”

Mr. Pence’s aides had signaled when news of the subpoena became public last week that they were likely to fight it on constitutional grounds as well as possible issues related to executive privilege.

Pursuing an argument based on the vice president’s role in the legislative branch would be a shift from Mr. Pence’s explanation for why he would not voluntarily testify before the House select committee investigating Jan. 6. Mr. Pence was never subpoenaed by the committee. But he had said it would set a bad precedent for a vice president to testify about internal White House discussions.

In the case of the grand jury subpoena, Mr. Pence is expected to argue that he was serving during the election certification process as a member of the legislative branch through his role as president of the Senate, bringing the “speech or debate” clause into play.

The subpoena is part of a series of steps taken in recent weeks by Jack Smith, the special counsel overseeing the Justice Department investigations into Mr. Trump. Mr. Smith, who is in charge of both the Jan. 6 inquiry and a parallel investigation into Mr. Trump’s handling of classified documents, has stepped up the pace of activity on both fronts, seeking to make good on the goal of making decisions before the 2024 presidential race gets underway.

Mr. Pence is a potential rival to Mr. Trump for the Republican nomination. So far, only Mr. Trump and Nikki Haley, the former South Carolina governor and U.N. ambassador under Mr. Trump, are declared major candidates. President Biden, who is widely expected to seek re-election, is also under scrutiny from a special counsel after he was found to have had a small number of documents with classified markings at an office and his home.

Mr. Pence is expected to talk more about the subpoena during an appearance in Iowa on Wednesday. He is expected to say that he was true to his constitutional duty on Jan. 6 and that he sees fighting the subpoena as necessary to protect the separation of powers.

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