WASHINGTON -- A federal judge has ruled that former Vice President Mike Pence will have to testify before a grand jury in the Justice Department's investigation into efforts by former President Donald Trump and his allies to overturn the results of the 2020 election.
That's according to two people familiar with the decision, who spoke Tuesday on condition of anonymity because the ruling remains under seal.
The ruling says Pence will not have to answer questions about his actions on Jan. 6, 2021, when a mob of Trump's supporters stormed the Capitol building as Republican Pence was presiding over a joint session of Congress to certify Democrat Joe Biden's victory. However, he would have to testify about any potential illegal acts committed by the former president, one of the people said.
Prosecutors have been seeking to compel Pence to testify about Trump's demands on him, which were documented by aides to Pence in testimony last year to the House select committee that investigated the Jan. 6 riot and what led up to it.
Pence and his attorneys had cited constitutional grounds in challenging a grand jury subpoena issued weeks ago. They argued that, because he was serving in his capacity as president of the Senate that day, he was protected from being forced to testify under the Constitution's "speech or debate" clause, which is intended to protect members of Congress from questioning about official legislative acts.
This month, Trump's lawyers asked U.S. District Judge James "Jeb" Boasberg's predecessor as chief judge for the court, Beryl A. Howell, to limit Pence's testimony by claiming that certain issues were off limits because of executive privilege, which protects certain communications between the president and some members of his administration.
At the same time, lawyers for Pence asked to limit his testimony by arguing that his role as the president of the Senate meant he was protected from legal scrutiny by the executive branch -- including the Justice Department -- under the Constitution's "speech or debate" clause. That provision is intended to protect the separation of powers.
'SPEECH OR DEBATE'
While Boasberg issued a clear-cut ruling against Trump's attempts to assert executive privilege, his ruling on the "speech or debate" clause was more nuanced, according to a person familiar with the matter.
The judge affirmed the idea that Pence had some protection under "speech or debate" based on his role in overseeing the certification of the election inside the Capitol on Jan. 6. But Boasberg also said that Pence would have to testify to the grand jury about any potentially illegal acts committed by Trump, the person familiar with the matter said.
People close to Pence have said for weeks that they expected he would have to testify to some degree to the grand jury. The New York Times reported that the Justice Department had been seeking an interview with Pence as far back as late last year.
Boasberg's decisions concerning Pence came a little more than week after Howell issued a ruling that more than a half dozen other former Trump administration officials -- including Mark Meadows, Trump's final chief of staff -- could not invoke executive privilege to avoid testifying to the grand jury investigating Trump's attempts to overturn the election.
The ruling by Howell, who stepped down as chief judge on March 17, paved the way for grand jury testimony from Meadows; one of his deputies, Dan Scavino; Robert C. O'Brien, who served as national security adviser; John Ratcliffe, the former director of national intelligence; and Stephen Miller, one of Trump's speechwriters and top advisers.
A Trump spokesman criticized the decision in a statement, accusing the Justice Department of "continuously stepping far outside the standard norms in attempting to destroy the long accepted, long held, constitutionally based standards of attorney-client privilege and executive privilege."
"There is no factual or legal basis or substance to any case against President Trump," they added, but did not respond to questions about how Trump's legal team might respond.
HISTORY IN MAKING
Pence's team is evaluating whether it will appeal.
The sealed ruling from Boasberg sets up the unprecedented scenario of a former vice president being compelled to give potentially damaging testimony against the president he once served. And it comes as Pence has been inching closer to announcing a run for the 2024 Republican presidential nomination -- a decision that would put him in direct competition with his former boss.
In addition to the Justice Department probes, Trump is under investigation in Georgia and also in New York, where a grand jury has been hearing testimony about hush money paid to women on Trump's behalf during the 2016 campaign. That grand jury will not take up the inquiry again this week, two people familiar with the matter said Tuesday, meaning any potential vote on a possible indictment will not happen until next week at the earliest.
In Washington, Pence was subpoenaed earlier this year to appear before the federal grand jury investigating election interference. In public appearances, he has cast that action as unconstitutional and unprecedented and has said he would pursue the matter as far as the Supreme Court.
Still, he told ABC's "This Week" that he might be open to testifying about matters not directly related to his congressional role.
"I've actually never asserted that other matters unrelated to January 6 would otherwise be protected by speech and debate," he told the network. "We're going to make that case, but I promise you we'll respect the decisions of the court."
A Justice Department special counsel, Jack Smith, is investigating attempts by Trump and his allies to overturn Biden's win in the 2020 presidential election to keep Trump in the White House. Multiple Trump aides have already appeared before the federal grand jury, as well as the separate Georgia panel examining allegations of Trump mishandling classified documents at his Mar-a-Lago club in Florida.
A spokesman for the special counsel's office declined to comment. A lawyer for Pence did not return messages seeking comment.
ATTORNEY-CLIENT ANSWER
Pence was one of the last major witnesses to litigate the boundaries of his grand jury testimony. Two of his closest aides -- Marc Short and Greg Jacob -- were ordered to appear before the grand jury last year, as were two top lawyers in Trump's White House, Pat A. Cipollone and Patrick F. Philbin.
In one of her final acts as chief judge, Howell issued a similar ruling in the classified documents inquiry. She ordered that M. Evan Corcoran, a lawyer for Trump, would have to testify to the grand jury conducting that investigation in spite of assertions of attorney-client privilege he had made on Trump's behalf.
In making her decision, Howell found that prosecutors in the office of the special counsel, Smith, had met the threshold for what is known as the crime-fraud exception. That allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or services were used to further the commission of a crime.
Pence has spoken extensively about Trump's pressure campaign urging him to reject Biden's victory in the days leading up to Jan. 6, including in his book, "So Help Me God." Pence, as vice president, had a ceremonial role overseeing the counting of the Electoral College vote, but did not have the power to change the results despite Trump's contention otherwise.
Pence has said that Trump endangered his family and everyone else who was at the Capitol that day and history will hold him "accountable."
Information for this article was contributed by Jill Colvin and Eric Tucker of The Associated Press and by Alan Feuer and Maggie Haberman of The New York Times.
Former President Donald Trump speaks with reporters while in flight on his plane after a campaign rally at Waco Regional Airport, in Waco, Texas, Saturday, March 25, 2023, while en route to West Palm Beach, Fla. (AP Photo/Evan Vucci)
FILE - Former Vice President Mike Pence speaks at a Coolidge and the American Project luncheon in the Madison Building of the Library of Congress, Feb. 16, 2023, in Washington. A federal judge has ruled that Pence will have to testify before a grand jury. Pence was subpoenaed by the special counsel investigating efforts by former President Donald Trump and his allies to overturn the results of the 2020 election. That's according to two people familiar with the ruling, who spoke on condition of anonymity because it remains under seal. (AP Photo/Alex Brandon, File)