Pence confirms he will fight Justice Department subpoena

Former Vice President Mike Pence said on Wednesday that he was willing to fight all the way to the Supreme Court a bid by special counsel Jack Smith to force him to testify about Donald Trump’s effort to subvert the 2020 election.

“It’s unconstitutional,” Pence said during a press availability amid a trip to Iowa. He swiped at what he called the “Biden DOJ subpoena” and said his role as president of the Senate — which he was fulfilling on Jan. 6, 2021, when a pro-Trump mob attacked the Capitol — makes him immune from the criminal grand jury proceedings Smith is leading.

“We’re prepared to take this fight into the court, and if need be take it to the Supreme Court,” Pence said.

Pence said he expected Trump would also move to quash the subpoena on the basis that it intrudes on executive privilege by seeking details of conversations between him and Trump.

“My understanding is that President Trump will assert that. That’s not my fight,” Pence said. “My fight is on the separation of powers.”

POLITICO reported on Tuesday that Pence planned to fight a grand jury subpoena issued recently by Smith and that the challenge would not be based on executive privilege but instead on the Constitution's “speech or debate” clause. That language has been interpreted to give broad legal protections to senators and House members, as well as members of their staffs.

How, if at all, it applies to Pence is uncertain. He’s expected to claim that he was acting in a legislative capacity as president of the Senate on Jan. 6, so forcing him to answer questions about that subject would violate the separation of powers between the legislative, executive and judicial branches of government.

“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 6th,” the former vice president said.

Pence, who is mulling entering the 2024 presidential race and effectively pitting himself against his former boss, appears to also be seeking to accomplish a kind of political straddle. Fighting the subpoena could endear him to some Trump backers, while also appealing to hard-core constitutionalists who consider themselves Republicans but are steadfastly opposed to Trump.

During his comments to reporters on Wednesday, Pence reiterated that he believed Trump was “wrong” to repeatedly pressure him — in public and private — to overturn the election on Jan. 6. Trump pushed Pence to use his perch as president of the Senate to refuse to count electoral votes for Joe Biden, a final desperate bid by Trump to remain in power despite losing the election.

But Pence heeded legal advice that he had no unilateral power to reject slates of electors from states where Biden had prevailed.

Pence also said that “reckless” rhetoric by Trump endangered him and his family, who had to flee the mob for hours.

“It’s also wrong to establish a precedent where a legislative official could be called into a court by an executive branch,” he said.