Special Counsel Asks Judge to Compel Pence to Testify

February 23, 2023

Federal prosecutors have asked a federal judge to compel former Vice President Pence to comply with a subpoena for his testimony from the office of Special Counsel Jack Smith, CBS News reported Thursday.

The motion to compel Pence’s testimony had been filed in secret to Judge Beryl Howell, the chief judge in Washington, D.C.’s federal court, as the special counsel’s office investigates former President Trump’s role in the January 6, 2021 insurrection. The motion reportedly came after lawyers for Trump had asserted executive privilege in response to Pence’s subpoena.

Pence himself is fighting the subpoena under the “speech and debate” clause of the Constitution, which essentially states that speech inside the Capitol by Senators and Representatives is privileged and “shall not be questioned in any other place.”

Pence has argued that he’s protected under the clause because he was acting as President of the Senate on January 6 as he undertook his duty to certify the Electoral College vote count that Trump lost to President Biden. 

“I’m going to fight the Biden DOJ subpoena for me to appear before the grand jury because I believe it’s unconstitutional, and it’s unprecedented,” Pence—who is weighing a run for President in 2024—told reporters in Iowa last week. He added that he would take his fight “to the Supreme Court” if necessary.

At his “stop the steal” rally ahead of the deadly riot at the U.S. Capitol that day, Trump said to the crowd, “I hope Mike Pence is going to do the right thing” and refuse to certify the results. 

Pence was 40 feet from the mob when he fled from the rioters inside the Capitol building, shouting, “Hang Mike Pence!”

The motion to compel Pence’s testimony is the logical next legal step for prosecutors. Filed less than two weeks after it was first reported that that Pence been subpoenaed, the motion asks the court to uphold the subpoena’s legal authority. Further, it indicates that DOJ prosecutors are moving quickly in their attempt to get Pence before a grand jury.

News of the DOJ’s motion to compel Pence’s testimony came on the same day that federal prosecutors argued before a federal appeals court to allow Smith’s office access to the cell phone of Trump ally Rep. Scott Perry (R-PA). Perry is arguing his phone is also protected under the speech and debate clause.

Howell’s term as chief judge presiding over all sealed grand juries in DC’s federal court is set to expire on March 17, at which point a new judge will take over.

Requests for comment to representatives for Smith, Pence and Trump by CBS News were all declined.

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