Federal Judge Says Pence Must Provide Some Testimony in Trump Probe

The Washington Post / Josh Dawsey, Devlin Barrett

11:17 JST, March 29, 2023

A federal judge has ruled that former vice president Mike Pence must provide testimony to prosecutors investigating President Donald Trump’s efforts to overturn the 2020 election results, according to people familiar with the matter.

However, the judge also ruled that Pence can remain silent on topics that deal specifically with his role in Congress on Jan. 6, 2021, when a formal tabulation of the presidential election results was interrupted by a violent pro-Trump mob, said the people, who spoke on the condition of anonymity to describe court proceedings that have not been made public.

Special counsel Jack Smith subpoenaed Pence for his testimony in the long-running investigation into whether efforts to block or undo Joe Biden’s 2020 victory constituted federal crimes, and Pence and Trump fought the demand on two separate legal grounds.

Trump argued that executive privilege, which shields some presidential discussions from being disclosed, barred Pence from appearing; Pence’s lawyers maintained that a constitutional protection against forcing lawmakers to provide evidence also prevented Pence – who presided over the Senate on Jan. 6 – from testifying.

U.S. District Judge James Boasberg ruled, in essence, against the executive privilege claim, which judges have repeatedly rejected for a host of Trump witnesses in criminal investigations involving the former president. But Boasberg also upheld part of the legislative claim made by Pence, finding that the “speech or debate” clause of the Constitution does prevent prosecutors from grilling the former vice president about his duties in Congress on Jan. 6, according to the people familiar with the ruling.

It was not immediately clear if Pence or Trump’s legal team will appeal Boasberg’s ruling, which was first reported by CNN, or how clearly the judge drew a line between Pence’s Jan. 6 discussions and his other conversations with Trump and his advisers in the post-2020 election period.

A spokesman for the special counsel declined to comment, as did a spokesman for Pence. When asked if there would be an appeal, a Pence adviser indicated the former vice president is evaluating his options.

“I’m pleased that the court accepted our argument and recognized that the Constitution’s provision about Speech and Debate does apply to the Vice President,” Pence said in an interview with Newsmax. “But the way they sorted that out, and the requirements of my testimony going forward, are a subject of our review right now, and I’ll have more to say about that in the days ahead.”

The decision marks the latest and highest-profile defeat for the Trump legal team’s efforts to limit testimony from people close to the former president. Last week, Trump lawyer Evan Corcoran appeared before a different grand jury for hours, after losing a fight to block a subpoena for his testimony about how he searched for classified documents at Trump’s Florida home.

In that case, Justice Department prosecutors are investigating whether Trump mishandled national security secrets or obstructed government efforts to retrieve classified documents from Mar-a-Lago, Trump’s home and private club, after receiving a subpoena demanding their return. The two federal investigations have been led by Smith since shortly after Trump announced in November that he was again running for president in 2024. Trump is also under investigation by local prosecutors in Georgia, for his actions around the 2020 election in that state, and in New York, in connection with hush-money payments to an adult-film star during the 2016 campaign.

According to people familiar with the Corcoran ruling, U.S. District Judge Beryl A. Howell found that prosecutors had good reason to pierce the attorney-client privilege, because there was evidence suggesting Trump may have lied to his own lawyers about the documents at Mar-a-Lago, and used Corcoran in furtherance of a crime.

In that and other Trump-related investigations, the former president has repeatedly failed to convince judges that conversations between him and his aides should be protected by executive privilege.

Court precedents have long held, dating back to the Watergate era, that executive privilege can be pierced in the course of a criminal investigation like a grand jury probe. In sealed court decisions, federal judges have consistently upheld that standard and ruled that prosecutors may call people close to Trump – even his lawyers – as witnesses.

That doesn’t necessarily mean that all those witnesses have damaging testimony to offer against Trump. In at least one instance in the Mar-a-Lago probe, prosecutors have sought to use a pro-Trump witness, Kash Patel, in a grand jury – not to incriminate the former president, but to spell out what possible defense Trump may have for his handling of top-secret documents.

Gathering evidence from other Trump advisers may similarly help prosecutors understand what Trump’s defense arguments may be to accusations that he and others sought to obstruct investigators at Mar-a-Lago or overturn the 2020 election results.

Pence, who is contemplating his own 2024 run for the White House, was pressured by Trump to disqualify Biden electors when presiding over the congressional tally – an option that was endorsed by some of Trump’s advisers but that legal experts have said Pence did not have the authority to take. Some Trump advisers argued at the time that if Pence refused to count some states’ Biden electors, that would open the door for legislatures in those states to submit alternate slates of Trump electors and, in theory, throw the election back in Trump’s favor.

The former vice president has offered an account of his interactions with Trump after the election in “So Help Me God,” his book released late last year, and interviews promoting it.

“Well, I don’t know if it is criminal to listen to bad advice from lawyers,” Pence told NBC News last year, when asked if he believed Trump committed any crimes in fomenting an insurrection. “The truth is, what the president was repeating is what he was hearing from that gaggle of attorneys around him. Presidents, just like all of us that have served in public life, you have to rely on your team, you have to rely on the credibility of the people around you. And so, as time goes on, I hope we can move beyond this, beyond that prospect. And this is really a time when our country ought to be healing.”

The recent court rulings requiring Pence and others to testify could speed up the pace of Smith’s investigations, even as the state-level probes involving Trump continue to draw attention.

In New York, Manhattan District Attorney Alvin Bragg (D) has a grand jury examining whether the former president should be charged with violations of state law for hush-money payments made to an adult film actress in 2016 who had alleged a prior affair with Trump. The grand jury met Monday but is not scheduled to meet again on the Trump investigation this week, according to a person familiar with the matter, who spoke on the condition of anonymity to discuss closed-door proceedings.

In Georgia, Fulton County District Attorney Fani Wills (D) is investigating whether Trump or people close to him committed any crimes in their efforts to prevent Biden from being declared the 2020 winner of that state. That investigation was launched following the release of a January 2021 recorded phone call between Trump and a Georgia elections official, in which the then-president suggested Georgia “find” the votes needed to flip the state to a Trump victory.

Willis convened a special grand jury to gather evidence from dozens of witnesses, and that panel filed a report that remains mostly sealed. Willis has signaled that a more traditional grand jury will now consider whether to indict anyone in the case.