"His testimony could be explosive": Experts say Pence subpoena ruling shows prosecutors "closing in"

Former U.S. attorney predicts Pence's testimony signals "the end of the line"

By Areeba Shah

Staff Writer

Published March 29, 2023 3:18PM (EDT)

Former Vice President Mike Pence speaks during the New York Times DealBook Summit in the Appel Room at the Jazz At Lincoln Center on November 30, 2022 in New York City. (Michael M. Santiago/Getty Images)
Former Vice President Mike Pence speaks during the New York Times DealBook Summit in the Appel Room at the Jazz At Lincoln Center on November 30, 2022 in New York City. (Michael M. Santiago/Getty Images)

A federal judge on Tuesday ordered former Vice President Mike Pence to testify before a grand jury investigating former President Donald Trump's attempts to overturn the 2020 election.

Special counsel Jack Smith, who is heading the Justice Department investigation into Trump's efforts to subvert the election, issued a subpoena for Pence to testify in February. Pence contested the subpoena under the Constitution's Speech or Debate Clause, which protects lawmakers from particular law enforcement actions related to their legislative roles. 

"Mike Pence has [an] insider's knowledge of Donald Trump's mindset on January 6, so his testimony could be explosive," Brandon Rottinghaus, a political science professor at the University of Houston, told Salon.

Pence's lawyers asked to limit his testimony, arguing that his role as the president of the Senate meant he was protected from legal scrutiny by the executive branch, The New York Times reported

Trump also sought to block Pence's testimony, asserting executive privilege in an effort to protect his conversations with the former vice president. His lawyers asked U.S. District Court Judge Beryl Howell — who handed the chief's gavel to Boasberg earlier this month — to limit Pence's testimony by claiming that certain issues were off limits because of executive privilege.

In the weeks leading up to the attack on the Capitol, Trump repeatedly pressured Pence to use his role overseeing the congressional count of Electoral College votes to block or delay certification of his loss. 

Judge Boasberg affirmed that the speech or debate clause offers some protections for Pence from providing testimony, but also said that he would have to testify to the grand jury about any potentially illegal acts committed by Trump, according to The Times. 

"It is unknown whether Pence's testimony will reveal anything new, but prosecutors need to know everything Pence witnessed so that they can understand all of the facts," said former U.S. Attorney Barb McQuade, a law professor at the University of Michigan. "If nothing else, they may want to lock Pence into his story now to avoid a fabrication later when the case goes to trial."

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

It's unclear whether Pence or Trump will appeal. Pence told Newsmax in an interview on Tuesday that he and his lawyers are "evaluating the court's decision."

"I can tell you that I'm pleased the court accepted our argument and recognized that the constitution's provision about speech and debate does apply to the vice president, 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," Pence said. 

While it is unclear how broad the judge's order is, McQuade said, the former vice president maybe be protected from answering questions about events occurring in the House chamber on Jan 6. "However, a broader application could cover Pence's preparation for that session, including meetings with Trump," she added.

The former vice president's role in the vote-counting process made him a target of Trump's campaign to reverse the election results, according to the House select committee investigating the Jan. 6 attack.

Trump also publicly pressured Pence in a rally at the Ellipse near the White House, before urging his followers to march "peacefully" and "patriotically" to the Capitol

"It seems less likely that Pence will lead prosecutors to other witnesses and more likely that Pence and Meadows are the end of the line," McQuade said. "Prosecutors tend to work in ever-smaller concentric circles. It seems like they are closing in, and need to question Pence to complete their investigation."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

MORE FROM Areeba Shah

Related Topics ------------------------------------------

Donald Trump Furthering Jack Smith Mike Pence Politics