Pair: DOJ pushes for Pence testimony before grand jury
The Justice Department has asked a federal judge to force former Vice President Mike Pence to testify fully in front of a grand jury investigating former President Donald Trump’s efforts to overturn the 2020 election, seeking to cut short any attempt by Trump to use executive privilege to shield Pence from answering questions, two people familiar with the matter said Thursday.
The request — amounting to a preemptive motion to compel Pence’s testimony — came before the former vice president had even appeared in front of the grand jury and before any privilege claims had actually been raised in court.
The sealed motion, filed in recent days in U.S. District Court in Washington, is the latest step in a long-running struggle, first by the DOJ and now by the office of the special counsel, Jack Smith, to cut through the various assertions of privilege that witnesses close to Trump have repeatedly raised in an effort to avoid answering questions.
The privilege disputes have been handled by Judge Beryl Howell, the chief federal judge in Washington, who oversees all of the district’s grand jury matters, which as a rule are conducted in secret. Howell is expected to step down from her position next month.
Last week, people close to Pence previewed his attempt to fight the grand jury subpoena by saying that the former vice president planned to argue that his role as the president of the Senate meant he was protected from legal scrutiny by the executive branch under the Constitution’s “speech or debate” clause. That provision is intended to protect the separation of powers.
Such an approach would be a departure from the more traditional argument that a vice president’s interactions with a president would be subject to executive privilege, a power asserted by presidents to shield certain internal executive branch deliberations.
But the special counsel’s motion to compel Pence’s testimony — reported earlier by CBS News — focused on the issue of executive privilege and advanced the proactive argument that Pence should not be permitted to avoid answering questions by invoking it on Trump’s behalf, the people said.
A spokesperson for Pence declined to comment. Joshua Stueve, a spokesperson for the special counsel’s office, also declined to comment.
In autumn, two former aides to Pence, Marc Short and Greg Jacob, asserted claims of both executive and attorney-client privilege in a bid to limit their own testimony in front of the grand jury investigating Trump’s role in overturning the election. The Justice Department filed a sealed motion at the time seeking to compel their testimony, and both men ultimately answered questions.
Not long after, Pat Cipollone and Patrick Philbin, the two top lawyers in Trump’s White House, tried a similar gambit. Again, the Justice Department prevailed, at least in part, and both men were made to answer questions in front of the grand jury.