Former VP Pence must testify about conversations with Trump before Jan. 6, federal judge says

Kevin Johnson, David Jackson and Bart Jansen, USA TODAY
·4 min read
Former Vice President Mike Pence pauses while speaking at a Coolidge and the American Project luncheon in the Madison Building of the Library of Congress, Thursday, Feb. 16, 2023, in Washington.
Former Vice President Mike Pence pauses while speaking at a Coolidge and the American Project luncheon in the Madison Building of the Library of Congress, Thursday, Feb. 16, 2023, in Washington.

WASHINGTON – A federal judge has ordered former Vice President Mike Pence to provide information to a federal grand jury as part of a Justice Department special counsel's investigation into Donald Trump's efforts to overturn the 2020 election, a person familiar with the matter said.

Pence said Tuesday he thought the subpoena was "unprecedented" and "unconstitutional" but that he was reviewing whether to appeal the decision. But he said he was "pleased" the court recognized he was shielded from answering some questions under the Constitution's speech-and-debate clause in his role as president of the Senate.

"Let me be clear, I have nothing to hide. I have a Constitution to uphold," Pence told Greta Van Susteren on Newsmax cable network. "But the way that they sorted that out the requirements of my testimony going forward are the subject of our review."

The decision, rendered as part of a sealed proceeding, represents a potentially significant blow to the former president's claims that he did nothing wrong while urging his vice president to intervene in the certification of President Joe Biden's election.

Pence was key to the strategy Trump adopted.

The strategy mapped out by Trump lawyer John Eastman called for Pence, in his role as president of the Senate, to reject electors from seven contested states that President Joe Biden won. Pence could then either accept alternate electors who supported Trump or send the contest to the House, where a majority of state delegations supported Trump.

Pence refused to participate. He fled the Senate chamber ahead of a mob that erected a gallows outside the Capitol and chanted, “Hang Mike Pence.”

In this image released in the final report by the House committee investigating the Jan. 6 attack on the U.S. Capitol, President Donald Trump talks on the phone to Vice President Mike Pence from the Oval Office of the White House on the morning of Jan. 6, 2021.
In this image released in the final report by the House committee investigating the Jan. 6 attack on the U.S. Capitol, President Donald Trump talks on the phone to Vice President Mike Pence from the Oval Office of the White House on the morning of Jan. 6, 2021.

Pence testimony likely to undercut Trump

In testimony before the House committee that investigated the attack, Pence aides described how Trump pressured and scolded his vice president.

Greg Jacob, Pence’s general counsel, testified that Trump called Pence the morning of Jan. 6 in a “heated” exchange. Jacob said Pence took the call privately but returned looking “steely, determined, grim.”

After evacuating the Senate chamber, Pence refused to get in a Secret Service car in an underground parking garage because he worried it would carry him away from the Capitol rather than finish the Electoral College vote count that night.

Pence didn’t wanted to take the chance “the world would see the vice president of the United States fleeing the Capitol,” Jacob said.

'No precedent' for Pence to intervene

Michael Luttig, a retired federal appellate judge who was influential in conservative circles, said he offered Pence advice that “there was no historical precedent” for the vice president to reject Electoral College votes.

J. Michael Luttig, retired judge for the U.S. Court of Appeals for the Fourth Circuit and informal advisor to Mike Pence before testifying on June 16, 2022 before the House select committee to investigate the Jan. 6th attack on the Capitol.
J. Michael Luttig, retired judge for the U.S. Court of Appeals for the Fourth Circuit and informal advisor to Mike Pence before testifying on June 16, 2022 before the House select committee to investigate the Jan. 6th attack on the Capitol.

Sarah Matthews, a former deputy press secretary in the White House, said Trump’s tweet at 2:24 p.m. – after he evacuated the Senate chamber – fueled the angry crowd. “I think that in that moment for him to tweet out that message about Mike Pence, it was him pouring gasoline on the fire and making it much worse,” Matthews said.

A 2024 campaign looms

The prospect of grand jury testimony comes at an awkward time for Pence as he considers a run for the presidency in 2024.

Trump and his allies still criticize Pence for refusing to follow the demand that he simply toss out electoral votes favorable to Biden and simply hand the election to the incumbent president.

At the same time, anti-Trump Republicans say Pence has exhibited too much fealty to the former president, including his attempts to avoid testify before the grand jury.

Pence has criticized Trump for ordering him to discount electoral votes, but stopped short of saying the former president acted illegally.

Pence calls subpoena 'unprecedented' and 'unconstitutional'

Pence opposed the subpoena but he told Newsmax he hasn't decided yet how to respond.

“When I received a subpoena from the Justice Department, I said that I thought it was not only unprecedented to ask a vice president to come into court to testify about the president," Pence said. "But I also thought it was unconstitutional, believing that the Constitution’s speech and debate protections applied to me when I was serving as president of the Senate on Jan. 6."

“I’ll have more to say about that in the days ahead," Pence said.

Pence: 'President Trump was wrong'

During a press dinner in March, Pence repeated his statement that "President Trump was wrong" and "I had no right to overturn the election. And his reckless words endangered my family and everyone at the Capitol that day, and I know history will hold Donald Trump accountable."

The former vice president's lawyers did not immediately respond to inquiries, including whether they will appeal the ruling.

Last month, the former vice president said he would take his case “as far as it needs to go, if need be to the Supreme Court of the United States.”

Trump slammed the Justice Department inquiry, claiming the special counsel was "stepping far outside the standard norms" in pursuing Pence's testimony.

“There is no factual or legal basis or substance to any case against President Trump," a campaign spokesperson said, echoing the former president's repeated claim that justice system was being "weaponized" against him.

This article originally appeared on USA TODAY: Former VP Pence must testify in Jan. 6 probe, federal judge says

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