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Pence will not fight the order that he testify before special counsel grand jury

Trump could still pursue an appeal to try to block Pence from testifying about their communications ahead of the Jan. 6 election certification.

Former Vice President Mike Pence will not appeal a federal judge’s order that he testify in the special counsel’s probe of former President Donald Trump’s attempt to overturn the 2020 election, his adviser announced Wednesday.

The decision not to fight the order could provide special counsel Jack Smith with remarkable access to one of the key people with critical insight into Trump’s thinking and efforts to cling to power. 

Last week, Judge James Boasberg, the chief judge of U.S. District Court for the District of Columbia, largely dismissed efforts mounted by Pence and Trump to limit his testimony and avoid handing over documents. 

Boasberg acknowledged a constitutional argument against forcing Pence to testify in front of a grand jury about matters related to his role as Senate president during the certification of the election on Jan. 6, but nevertheless concluded that immunity should not prevent Pence from testifying about conversations related to alleged “illegality” on Trump’s part.

“Vice President Mike Pence swore an oath to support and defend the Constitution, and his claim that the Biden Special Counsel’s unprecedented subpoena was unconstitutional under the Speech or Debate Clause was an important one made to preserve the Separation of Powers outlined by our Founders,” Pence adviser Devin O’Malley said in a statement Wednesday. “In the Court’s decision, that principle prevailed. The Court’s landmark and historic ruling affirmed for the first time in history that the Speech or Debate Clause extends to the Vice President of the United States. Having vindicated that principle of the Constitution, Vice President Pence will not appeal the Judge’s ruling and will comply with the subpoena as required by law.”

It’s unclear exactly when Pence will appear before the grand jury in Washington, according to a source familiar with the matter, and the case remains under seal. Trump’s attorneys could still appeal Boasberg’s ruling. Last week, his legal team filed an appeal to block the testimony of several of his senior aides. 

Pence has already published a memoir and Wall Street Journal op-ed detailing several significant interactions with Trump in the days leading up to Jan. 6. NBC is told prosecutors are focused on specific efforts Trump took to try to block the certification of the election.