A federal judge in Washington has ordered former Vice President Mike Pence to comply with a grand jury subpoena and testify about his conversations with former President Donald Trump as Trump tried to overturn his 2020 defeat for reelection.
Judge James Boasberg, the chief judge for the U.S. District Court in Washington, issued the ruling Monday, mostly rejecting pleas by Trump and Pence to keep the former vice president from having to divulge their private conversations at the White House and in phone calls.
While the ruling remains sealed, U.S. news outlets reported that Boasberg rejected contentions by Trump’s lawyers that certain of his discussions with Pence in the weeks after the 2020 election were off-limits because of executive privilege, which shields disclosure of some conversations between U.S. presidents and their aides.
At the same time, the judge blocked federal prosecutors from asking Pence direct questions about his role in presiding over Congress on January 6, 2021, as it began to certify the Electoral College vote determining that Democrat Joe Biden had defeated Trump. Pence, as Trump’s running mate, had also lost reelection.
But the judge did not block the prosecutors, led by special counsel Jack Smith and his associates appearing before the grand jury, from asking Pence about other possibly illegal efforts by Trump to overturn his election loss, such as a documented effort to select fake Trump electors in some states to replace legitimate electors pledged to certify Biden’s victory.
In the United States, the Electoral College vote, decided by the state-by-state vote counts throughout the country, determines who is president and vice president, not the national popular vote outcome.
Boasberg accepted Pence’s contention that he had some protection against answering questions before the grand jury under the U.S. Constitution’s “speech or debate” clause governing legislative actions.
Pence certified loss
Trump had pleaded with Pence to upend the Electoral College vote and keep him in power, but Pence, on the advice of his lawyers and more than two centuries of U.S. precedent, decided his role was ceremonial and certified that Trump had lost.
The final Electoral College vote did not occur until the early hours of January 7, 2021. The process was delayed for hours after 2,000 Trump supporters stormed the U.S. Capitol in protest against Pence, who by then had made clear he would ignore Trump’s pleas to upend the election result.
Some protesters shouted, “Hang Mike Pence,” and a gallows was erected on the National Mall within eyesight of the Capitol. About 1,000 of the protesters have been arrested so far. About half of them have been convicted of an array of offenses, with some being sentenced to several years in prison.
While limiting some questioning of Pence, Boasberg ruled that Pence would have to testify about any potentially illegal acts Trump may have committed in trying to remain in power.
In a memoir of his vice presidency, Pence wrote that in a New Year’s Day phone call in 2021, Trump told him, “You’re too honest,” predicting that “hundreds of thousands are gonna hate your guts,” and “people are gonna think you’re stupid” for certifying the Electoral College outcome.
“Mr. President, I don’t question there were irregularities and fraud,” Pence wrote that he told Trump. “It’s just a question of who decides, and under the law, that is Congress.”
Pence said he and Trump “have gone their separate ways.”
Either Trump or Pence could appeal Boasberg’s ruling, but it was not immediately known whether either one would. Pence told ABC News recently that while he would appeal any adverse ruling related to his actions overseeing the Electoral College vote, he would not seek to block testimony related to his other conversations with Trump.
Special counsel Smith is conducting a wide-ranging inquiry into Trump’s actions to stay in office and also Trump’s retention of classified documents at his Mar-a-Lago estate in Florida after he left office. The law requires that such documents be turned over to the National Archives when a president leaves office.
A prosecutor in Georgia’s capital, Atlanta, is probing Trump’s efforts to overturn the vote count in that state, and a New York prosecutor is weighing whether to file charges against Trump in connection with his $130,000 hush money payment to a porn star. The payment was made ahead of the 2016 election to keep her quiet about her claim to have had a one-night affair with Trump a decade earlier. Trump has denied the allegation.
Trump has denounced the various investigations of his actions and announced his candidacy for the 2024 Republican presidential nomination.
Pence says he is contemplating his own presidential candidacy in 2024.