DOJ SEEKS TO FORCE PENCE TO TESTIFY
Move intends to preempt any claims of executive privilege
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 behind-the-scenes struggle, first by the Justice Department 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 and be replaced by another chief judge.
Also on Thursday, Howell rejected a request by reporters at The New York Times and Politico to unseal her rulings and associated filings about legal fights ancillary to the material presented to the Jan. 6 grand jury itself, such as hidden wrangling over whether former Trump aides could lawfully decline to answer questions based on executive
privilege.
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 — including the Justice Department — 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.
But the special counsel’s motion to compel Pence’s testimony — reported earlier by CBS News — did not address his expected arguments about the “speech or debate” clause, the two people
familiar with the matter said. Rather, it 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.
Witnesses close to Trump have also raised claims of privilege in an effort to avoid answering questions in a separate grand jury investigation — one that is examining Trump’s handling of sensitive government documents that he took with him after leaving office to Mar-aLago, his private club and residence in Palm Beach, Fla.
This month, one of Trump’s lawyers in that case, M. Evan Corcoran, invoked attorney-client privilege after being subpoenaed to answer questions in front of the grand jury. The special counsel’s office responded by filing a motion to Howell, asking her to set aside the privilege claims under what is known as the crime-fraud exception.
The crime-fraud exception allows prosecutors to work around attorney-client privilege if they can convince a judge that there is reason to believe that legal advice or legal services have been used in furthering a crime.
This week, lawyers for Trump filed a response saying the crime-fraud exception did not apply to Corcoran.