Court Orders Pence To Testify To Special Counsel, Side Eyes Privileges And Legislative Immunity Claims

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On Friday March 17, Judge Beryl Howell rotated out of her term as chief judge with one of the greatest mic drops in history: abrogating attorney-client privilege under the crime-fraud exception and ordering Donald Trump’s attorney Evan Corcoran to testify about the former president’s retention of classified documents. She also nixed Trump chief of staff Mark Meadows’s executive privilege claims and told him to get down to the January 6 grand jury and start talking.

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Perhaps if Trump’s lawyers hadn’t waited until Tuesday to seek emergency review of the Corcoran order, they’d have drawn a better panel. But in the event, Judges Pan, Pillard, and Childs took less than 24 hours to get the case briefed and order the lawyer to spill it. He testified before Special Counsel Jack Smith’s grand jury on Friday the 24th.

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With now-Chief Judge James Boasberg rotating in, no one expected a sea change for Trump’s efforts to fend off the Special Counsel’s twin grand juries by dint of judicial process. And indeed Chief Judge Boasberg seems to have picked up more or less where Judge Howell left off.

Last week, the court heard a two-pronged challenge to a subpoena for Mike Pence’s testimony. Once again, Trump asserted executive privilege to block the Special Counsel from forcing Pence to testify before the grand jury about the events leading up to the Capitol Riot. For his part, Pence advanced a novel legal theory that he was acting in his role as president of the Senate, and is thus immune from process under the Speech or Debate Clause. This claim was somewhat undercut by Pence’s book, which contains firsthand accounts of many of the events he now claims are off limits.

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In a sealed order that was widely reported this afternoon, Judge Boasberg refused to credit Trump’s executive privilege claim at all. And he appears to have given short shrift to Pence’s claims of legislative immunity as well.

CNN reports that the court ordered the former vice president to testify about his interactions with Trump, but permitted him to “decline to answer questions related to his actions on January 6 itself, when he was serving as president of the Senate for the certification of the 2020 presidential election.”

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ABC’s sources say that the order instructs Pence to “provide answers to special counsel Jack Smith on any questions that implicate any illegal acts on Trump’s part.”

For his part, Pence has vowed to appeal.

“We’re going to respect the decisions of the court, and that may take us to the highest court in the land,” he told ABC’s Jonathan Karl earlier.

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Because the order is sealed, we have no idea if it’s stayed pending appeal. But presumably Pence’s attorney Emmet Flood won’t wait four days to seek relief from the DC Circuit. Maybe he’ll roll a seven and wind up with Judges Katsas, Rao, and Walker. But if not, Pence can probably count on an assist from his pals at One First Street, NE, who will no doubt be eager to entertain the fiction that the former VP is deeply concerned with protecting constitutional prerogatives and the separation of powers.

He’ll still never be president. But with a little luck, Pence can probably appeal this order long enough that the Special Counsel will either close up shop or get fired by President DeSantis.

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Mike Pence must testify about conversations he had with Donald Trump leading up to January 6, judge rules [CNN]
Judge rejects Trump’s privilege claims over Pence testimony in Jan. 6 probe [ABC]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

Topics

Beryl Howell, Capitol riot, Donald Trump, Government, Jack Smith, James Boasberg, Mike Pence