Federal judge orders Pence to testify in special counsel probe investigating Trump

A judge in Washington, D.C., said the former vice president must comply with a subpoena from a grand jury tied to the special counsel's investigation.


WASHINGTON — A federal judge has ordered former Vice President Mike Pence to comply with a subpoena in the investigation into former President Donald Trump’s efforts to overturn the 2020 election results, according to a source familiar with the decision.

The ruling from Judge James Boasberg, the chief judge of U.S. District Court for the District of Columbia, requires Pence to testify before the grand jury tied to the probe led by special counsel Jack Smith.

The ruling, which was issued Monday, remains under seal because it involves grand jury matters. The order was a partial victory for Pence and his argument that he was shielded from having to testify about Jan. 6 because of his constitutional role as part of the legislative branch.

Pence's team has argued that the “speech or debate” clause of the Constitution, which can protect lawmakers from being compelled to discuss legislative activity, granted him immunity from testifying. Boasberg ruled that while Pence does have some limited protections because of that, the immunity does not prevent him from testifying about conversations related to alleged “illegality” on Trump’s part.

Former Vice President Mike Pence in Washington, D.C., on Oct 19.Jabin Botsford / The Washington Post via Getty Images file

Trump’s legal team had separately made wholesale objections to Smith’s subpoena on executive privilege grounds — claims Boasberg completely rejected Monday.

Smith, whom Attorney General Merrick Garland appointed to lead the investigation in November, issued the subpoena of Pence last month. Pence vowed to fight it, saying “no vice president has ever been subject to a subpoena to testify about the president with whom they served."

Pence has said he would take the case to the Supreme Court if necessary. He told ABC News this month he was not asserting executive privilege over conversations unrelated to his duties on Jan. 6.

It is unclear whether Pence plans to appeal Boasberg’s ruling. Spokespeople for Pence and the Justice Department declined to comment on the ruling.

“We’re evaluating the court’s decision,” Pence said in an interview with Newsmax’s Greta Van Susteren, who also asked about his 2024 plans. Pence indicated he would decide in "the spring or early summer."

“I expect we won’t get out of spring without Karen and I having a clear sense of our calling," he said, referring to his wife. Pence last month told NBC News he would decide "by the spring."

Boasberg’s ruling on executive privilege is another victory for the special counsel's team, which persuaded another federal judge this month that a number of former Trump administration officials — including Dan Scavino, Stephen Miller, Robert O’Brien, John Ratcliffe, Ken Cuccinelli and John McEntee — must also testify. Trump is expected to appeal the ruling. It was not immediately clear whether he plans to appeal Boasberg’s decision about Pence, as well.

In response to the ruling, a Trump spokesman said: "The DOJ is continuously stepping far outside the standard norms in attempting to destroy the long-accepted, long-held, constitutionally based standards of attorney-client privilege and executive privilege.

“There is no factual or legal basis or substance to any case against President Trump," the spokesman said.