Vice President Mike Pence will not challenge the judge’s decision that he appear before the grand jury looking into President Trump’s efforts to undermine the 2020 election.
Both Trump and Pence have filed challenges to the subpoena, each for different reasons.
Devin O’Malley, the vice president’s spokesman, said on Wednesday that Pence would not be appealing the judge’s judgment and would instead comply with the subpoena as required by law.
Chief U.S. District Court Judge James Boasberg issued a groundbreaking judgment in private to demand Pence’s testimony but to concede certain boundaries on the issues prosecutors may quiz him about.
Trump claimed that investigators should be prevented from listening in on his conversations with Pence in the weeks leading up to the attack on the Capitol on January 6 due to executive privilege, which is meant to protect the privacy of certain communications between the president and their vice president.
In recent months, Trump has been unable to persuade federal district and appellate courts to back his privilege declarations in a succession of secret executive privilege arguments.
But Pence had maintained that the subpoena for his testimony was problematic for another reason: his position as Senate president. He said that the vice president is a unique blend of the executive and legislative branches because of the Constitution. Pence’s role on January 6—to oversee the count of electoral votes in Congress—was part of his congressional duties. As such, he was afforded the protection of the “speech or debate” clause, which shields legislators from criminal inquiries that relate to their official responsibilities.
Hence, Pence’s lawyer said, Pence should be exempt from the special counsel’s request for evidence about his involvement on January 6. The details of Boasberg’s judgment are unclear, but a source close to the matter has said that the judge agreed with some of Pence’s points.
Pence has repeatedly indicated that he is prepared to appear before the grand jury regarding matters not protected by privilege. Smith will ask Pence about Trump’s campaign to persuade him to disrupt the transition of power by not counting Biden’s electoral votes on Jan. 6.