In the midst of an Iowa trip, former Vice President Mike Pence told the press Wednesday he will “fight” a subpoena from Justice Department special counsel Jack Smith requesting documents related to former President Donald Trump’s actions surrounding Jan. 6.
Pence said he believed the subpoena, which also requires him to testify before a grand jury, is “unconstitutional.” “No vice president has ever been subject to a subpoena to testify about the president with whom they served,” Pence said.
Pence recently published a book recounting some of his discussions with Trump leading up to Jan. 6 and his role as vice president in the congressional certification of the 2020 presidential election results. The former president requested Pence reject votes from a number of states. But Pence chose to preside over the certification proceedings, as prescribed by the U.S. Constitution.
Pence was subpoenaed by Smith last week, according to NBC News. Attorney General Merrick Garland appointed Smith to lead the investigation of Trump’s handling of classified documents and his role in the Capitol riot.
“We’re prepared to take this fight into the court, and if need be take it to the Supreme Court,” Pence told reporters. While he said he expects Trump to fight the subpoena as well on executive privilege grounds, he indicated his strategy is different.
“My fight is on the separation of powers,” Pence said. He said that on Jan. 6 he was fulfilling his constitutional duty, not as member of the executive branch, but as a member of the legislative branch in his capacity as president of the Senate. He said that this affords him the same constitutional “speech or debate” clause protections extended to members of Congress.
The purpose of the clause, found in Article 1, section 6, is to reassure members of Congress that anything they say in the halls of Congress cannot implicate them in legal proceedings. The courts have interpreted the language broadly, even including congressional staff activity.
Pence’s legal strategy has been called “novel” but “plausible” by Mark Rozell at George Mason University. “It is one of these constitutionally gray areas in which there could reasonably be different interpretations of the vice president’s role,” Rozell told the Wall Street Journal.
If the courts find, as Pence claims, that he was acting in his legislative role as president of the Senate, then compelling his compliance to a subpoena would likely violate separation of powers between the legislative, executive and judicial branches of the federal 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,” he said.
Politico reported that during Pence’s comments Wednesday to reporters he reiterated that Trump’s “reckless” rhetoric on Jan. 6 was “wrong” and that it endangered him and his family.
Pence is considering a 2024 campaign for president, potentially challenging his former boss directly for the GOP presidential nomination. Last year he was asked if he’d support Trump in 2024.
“Well, there might be somebody else I’d prefer more,” he told the crowd.
Pence said he would take the holidays to talk with his family about what he wants to do. “We’ll be thinking about the future — ours and the nation’s, and I’ll keep you posted,” he said last year.
His activity in Iowa this week rallying conservatives around “parental rights” suggests he is seriously considering a presidential bid. And if money is another indication, Pence’s think tank, Advancing American Freedom, is spending $1 million in digital, television and radio ads in the Hawkeye state, the first to vote next year in the GOP presidential primary.