Washington — Former Vice President Mike Pence confirmed Wednesday he will resist a subpoena from the special counsel leading the investigations into former President Donald Trump, arguing he is doing so in defense of the Constitution.
“I’m going to fight the Biden DOJ’s subpoena sent to me last week because it’s unconstitutional and because it’s unprecedented and the DOJ knows that,” Pence told reporters after an event in Minnesota on parental rights. “The Constitution of the United States provides the Executive Branch cannot summon officials in the Legislative Branch into a court in any other place.”
Pence said his reasons for challenging the subpoena from special counsel Jack Smith are the same as his motivations for defying Trump’s pressure to unilaterally refuse state Electoral College votes on Jan. 6, 2021, when lawmakers gathered for the joint session of Congress to tally state electoral votes. A mob of Trump’s supporters breached the Capitol during the count, which brought the proceedings to a standstill and prompted the Secret Service to move Pence to a secure location.
“For me, this is about the Constitution. If we lose the Constitution, we won’t just be losing elections. We’re going to lose our country,” Pence said. “On January 6, I took a stand on the Constitution, and in this fight I will stand on the Constitution as well.”
CBS News confirmed last week that Pence was subpoenaed by Smith, who was appointed in November to take over two Justice Department investigations into Trump. One of the probes involves Trump’s handling of sensitive government records discovered at his South Florida residence, Mar-a-Lago. The second centers around efforts to stop the transfer of presidential power after the 2020 election and interfere with the counting of Electoral College votes on Jan. 6, 2021.
Two people familiar with Pence’s plans confirmed Tuesday that the former vice president intends to challenge the subpoena by claiming legislative privilege. The argument centers around Pence’s former role as president of the Senate, the position held by the vice president, which he indicated that he will argue protects him from Justice Department questioning under the Constitution’s “speech or debate” clause.
The constitutional 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 told reporters that it’s “wrong” to set a precedent where a legislative official can be called into court by the Executive Branch — the Justice Department, in this case — and said the issue “goes to the heart” of the separation of powers.
“My fight is on the separation of powers,” he said. “My fight against the DOJ subpoena very simply is on defending the prerogatives that I had as president of the Senate to preside over the joint session of Congress on January 6.”
He said he is prepared to take a legal fight challenging the subpoena to the Supreme Court if need be.
Pence, as president of the Senate, cast tie-breaking votes and presided over the joint session of Congress on Jan. 6, when lawmakers gathered to count state electoral votes and reaffirm President Biden’s win. His role in the vote-counting made Pence a target of Trump’s campaign to reverse the outcome of the 2020 presidential election, according to the House select committee that investigated the Jan. 6 Capitol assault, as Trump pressured him to unilaterally toss out or replace some slates of electors.
The theory that Pence had the power to intervene in the certification of Electoral College votes was advanced by John Eastman, a conservative lawyer who the select committee referred to the Justice Department for potential prosecution. Pence, though, ultimately did not bow to Trump’s pressure.
The details of the subpoena to Pence are unclear, including what information the special counsel is seeking from him. Timothy Parlatore, a lawyer for Trump, told CNN that the former president intends to assert executive privilege over Pence’s testimony.
The former vice president’s decision to challenge the subpoena comes as he is expected to make a 2024 presidential run. If Pence declares his candidacy, he will go up against Trump, who announced a third White House bid in November, and former South Carolina Gov. Nikki Haley. Other Republicans are expected to compete for the party’s presidential nomination, though only Trump and Haley have announced their campaigns.
Pence’s resistance also follows a consensual search by the FBI of his home in Indiana this month after an aide discovered a “small number” of documents marked classified among Pence’s records in mid-January.
The documents were turned over to the FBI, and Pence has said he takes “full responsibility” for the existence of the records from his vice presidency.
Documents bearing classification markings were also discovered in Mr. Biden’s and Trump’s possession, though the number of documents found, and circumstances surrounding their retrieval, differ extensively.
In Mr. Biden’s case, between 25 and 30 records marked classified dating to his time in the Senate and vice president, were found by his personal lawyers in his former office at a Washington think tank and in his Wilmington, Delaware, home. The records were handed over to the Justice Department, and the FBI conducted consensual searches of both the Wilmington residence and Rehoboth Beach, Delaware, house.
In Trump’s case, more than 300 documents with classified markings were discovered at his South Florida property, Mar-a-Lago, roughly 100 of which were found by federal investigators during a court-approved search of the property in August.
