Former President Trump has lost an appeal to block former Vice President Pence from testifying in the special counsel’s investigation into the deadly January 6, 2021 insurrection.
Trump filed his appeal on April 10, five days after a Pence attorney said he would not challenge a court order requiring his testimony before the special counsel’s grand jury.
The latest decision from the DC Circuit Court of Appeals panel made up of Judges Patricia Millett, Robert Wilkins and Greg Katsas came in a sealed case Wednesday night.
Trump had cited executive privilege in his challenge, while Pence had initially said he would fight the grand jury’s 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 was acting in his role as then-President of the Senate on January 6 to certify the 2020 electoral college count that Trump lost to President Biden.
In the end, the judges decided to override the lower-court ruling regarding Pence’s subpoena, denying Trump’s requests.
Trump could try to appeal again and even press the issue at the Supreme Court. However, his previous executive privilege challenges have evaporated in courts of appeal.
While former Presidents may assert executive privilege in some cases, the prerogative is widely regarded to fall under the purview of the sitting President, and Biden has repeatedly declined to assert it in Trump’s numerous legal battles.
At his “Stop the Steal” rally ahead of the deadly riot at the U.S. Capitol on January 6, Trump said to the gathered crowd on the National Mall, “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 who were shouting, “Hang Mike Pence!”
Four people died during the insurrection, and five police officers died of various causes following the attack.
In late March the chief judge of DC’s federal district court ruled that Pence must adhere to special counsel Jack Smith’s request, but Judge James Boasberg said that Pence can still decline to answer questions related to his actions on the day of January 6 itself.
Smith is overseeing both the federal investigation into Trump’s role in the January 6 insurrection as well as Trump’s mishandling of classified documents at his Mar-a-Lago estate in Florida after leaving office. The veteran prosecutor was appointed by Attorney General Merrick Garland in November.
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