Pence to Fight S/C Subpoena: News Was Not Expected from Former Vice President

“Back off Smith: Mike not testifying against me”

On January 6, former VP Mike Pence (R-IN) knew, said he knew, and was advised that he could not throw the EC official vote count to Trump to keep him in office after losing the 2020 election.

Many lawyers close to Pence told him his duty only was to monitor the EC votes submitted to congress for  official certification. In other words he was “the process referee” and not much else.

However, Pence now wants to skip Special Counsel Jack Smith’s subpoena for him to testify about that horrible day’s events even as the rioters broke into the Capitol shouting “Hang Mike Pence” and who outside had made a gallows. 

Late FYI Insert: A great source of one of the select committee’s public hearings – this one is from June 16, 2022, here from CNBC. It has many good internal links of events leading up to and during January 6.

Trump speech: “If Mike does the right thing, we win...”

His strategy is explained in the Washington Examiner with this headline that lays out his plan to not comply with the subpoena:

“Mike Pence to fight special counsel subpoena using unique legal argument”

Former Vice President Mike Pence is expected to challenge a subpoena from special counsel Jack Smith who is investigating Trump on various matters, including the Capitol riot on January 6, 2021.

Pence is planning to use a novel legal argument to keep Smith and the subpoena at bay, invoking the speech or debate clause and appealing to the separation of powers rather than shielding himself with executive privilege that according to Politico. 

His argument is this: As Vice President at the same time, he was acting as the president of the Senate on January 6. That according to people familiar with his strategy means he is covered by the protection affording lawmakers broad leeway while conducting legislative business that day.

According to one of the two people familiar with that thinking told Politico: “He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature. He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”

The plan to fight the subpoena also comes as Pence is expected to announce a campaign of his own for the White House, setting up a direct run-in against his former boss.

While Pence's team said it doesn't plan on using executive privilege, a Trump lawyer said on CNN that Trump would attempt to exercise executive privilege over any testimony Pence would provide.

The subpoena for Pence was first reported last week, after Trump's former national security adviser, Robert O'Brien, was also ordered to answer questions before the special counsel.

Pence had been someone the now-defunct January 6 select committee had been considering subpoenaing to testify but was never asked to. 

In November 2022, Pence told CBS's Face the Nation: “Congress had no right to my testimony on separation of powers grounds.”

The Trump investigations by the DOJ were moved to Jack Smith after Trump announced his third run for president in November 2022, with AG Merrick Garland arguing the move was necessary due to President Joe Biden's likely 2024 reelection bid.

My 2 Cents: I’m not a lawyer, but I see several other moving parts here about Pence disobeying this or any other subpoena for that matter in a criminal investigation: (1) I don’t see executive privilege claimed by Trump or Pence working this case; and (2) Pence knew clearly that he did not have the authority to stop EC vote certification and he said so many times. 

However, and purely in my view: (3) He may have thought to himself that Trump’s riot and fake elector scheme would somehow succeed and that he and Trump would both remain in office.

I also believe this argument Pence is putting forth now will not hold any water and he should be compelled to testify. 

This from Politico which I agree with is: Pence aides say he’s taking this position to defend a separation of powers principle, which will allow him to avoid being seen as cooperating with a probe that is politically damaging to Trump, who remains the leading figure in the Republican Party.

Simply put: Justice must prevail to prove once and for all that “No one is above the law” period. 

I also believe if this were to reach the Supreme Court that it would lose as a former Trump lawyer once said – “… we would lose 9-0” [sic].  

Lawyer John Eastman developed the fake EC list plan to put pressure on Pence. The plan was called the “Green Bay Sweep” as Peter Navarro once called it on TV. 

It was solely designed to push Pence to delay the EC certification and keep Trump in power. The Trump lawyer testified it would fail 9-0 if it ever went to the Supreme Court (and as I said, even Eastman admitted to that).

Finally, for this action, Pence is a coward: He wants to run himself and at the same time trying to weasel out and have it both ways: (1) Run and not offend Trump, while (2) clinging to the MAGA base to win.

Will it work? I sure hope not. But, stay tuned this pending legal approach will take time – how much time? That is unknown. But, in meantime, this is gonna get very nasty and ugly very fast.

Thanks for stopping by.