Washington — Three people briefed on the decision confirmed to CBS News that a federal judge in Washington ruled that former Vice President Mike Pence must testify before a grand jury about former President Donald Trump’s effort to reverse the outcome of the 2020 presidential election.
Special counsel Jack Smith, who is overseeing the Justice Department’s investigation into efforts to stop the transfer of presidential power after the 2020 election, issued a subpoena for Pence’s testimony before the grand jury in February. But the former vice president vowed to resist the demand, arguing he is protected from questioning by prosecutors under the Constitution’s “speech or debate” clause.
The provision says that members of the legislative branch “shall not be questioned in any other place” for “any speech or debate” in either chamber. Pence’s argument stemmed from his role as president of the Senate, the position held by the vice president.
Trump also sought to block Pence’s testimony, asserting executive privilege.
The sources told CBS News that Chief Judge James Boasberg of the U.S. district court in Washington, who is overseeing the grand jury, rejected Trump’s claims of executive privilege and found they did not apply to any potential testimony by Pence.
But Boasberg found the speech or debate clause in part protects Pence from providing testimony, specifically on congressional matters related to the events of Jan. 6, 2021, though he must testify about any illegal acts by Trump.
The scope of potential questioning of Pence by federal prosecutors before the grand jury remains unclear. Boasberg’s ruling remains under seal.
Pence could appeal the decision — he told Newsmax in an interview Tuesday that he and his lawyers are “evaluating the court’s decision.” He said he was “pleased” that the judge “for the first time in history recognized that the Constitution, speech and debate provisions do apply to the vice president when one is serving as president of the Senate,” and he added, “how they sorted that out of what other testimony might be required we’re currently reviewing, but look, I — let me be clear — I have nothing to hide. I have a Constitution to uphold. I upheld the Constitution on Jan. 6.” Pence said he would “have a decision in the coming days.”
The former vice president has in the past vowed to take his legal fight over the subpoena, which he has called “unprecedented” and “unconstitutional,” to the Supreme Court. NBC News first reported the ruling.
The Justice Department declined to comment.
The decision comes days after lawyers for the three parties — Trump, Pence and the Justice Department — were spotted at the U.S. district court in Washington on Thursday ahead of an expected hearing on whether the former vice president would have to comply with Smith’s subpoena.
Appointed in November by Attorney General Merrick Garland, Smith is leading the Justice Department’s two investigations involving Trump, including efforts surrounding the 2020 presidential election and attempts to interfere with the counting of Electoral College votes on Jan. 6, 2021.
Pence presided over the joint session of Congress on Jan. 6, when lawmakers gathered to count the state electoral votes and affirm President Biden’s win. His role in the vote-counting made Pence a target of Trump’s campaign to reverse the election results, according to the House select committee that investigated the Jan. 6 assault, and the former president pressured him to unilaterally toss out or replace slates of electors from key battleground states. Pence, though, did not bow to Trump’s pressure.
The joint session on Jan. 6 was disrupted when a mob of Trump’s supporters breached the U.S. Capitol building, and Pence was moved to a secure location by the Secret Service.
He has since denounced Trump’s rhetoric surrounding the 2020 election, telling an audience of politicians and journalists this month that “history will hold Donald Trump accountable for his actions.”
Aaron Navarro contributed to this report.
