Justice Department asks judge to force Mike Pence to give evidence in Trump probe

Pence Executive Privilege (ASSOCIATED PRESS)
Pence Executive Privilege (ASSOCIATED PRESS)

The Department of Justice has asked a federal court to compel former vice president Mike Pence to give evidence before a grand jury that is investigating former president Donald Trump’s attempt to overturn his 2020 election loss to Joe Biden and keep himself in office against the will of American voters.

In sealed proceedings before Judge Beryl Howell, the chief judge of the US District Court for the District of Columbia, federal prosecutors have sought to pierce assertions of executive privilege claimed by attorneys representing Mr Trump, who have intervened in hopes of blocking the former vice president from testifying in the criminal probe that is being overseen by Special Counsel Jack Smith.

The secret proceedings before Chief Judge Howell, which were first reported by the New York Times and CBS News, come as Mr Pence has stated publicly that he would seek to block any attempt to compel his testimony about conversations he had with Mr Trump in the period leading up to 6 January 2021, the day the quadrennial joint session of Congress at which lawmakers certified his and Mr Trump’s 2020 election defeat was interrupted by a riotous mob that was summoned to the American capital by the outgoing president.

Mr Pence has claimed his testimony cannot be compelled because he was acting in his role as president of the Senate that day, which in his view would mean his actions are shielded by a section of the US Constitution which grants immunity to members of each legislative chamber.

Speaking Iowa last week, Mr Pence told reporters: "On the day of Jan. 6, I was acting as president of the Senate, presiding over a joint session described in the Constitution itself. So, I believe that that Speech and Debate clause of the Constitution actually prohibits the executive branch from compelling me to appear in a court, as the Constitution says, or in any other place”.

The novel defence, which has never been vetted by a court of law, has been questioned by legal and constitutional experts who have said the so-called “speech and debate” immunity only extends to elected members of the House and Senate.

But Mr Pence’s invocation of that alleged immunity is widely seen as a last-ditch attempt to prevent him from being viewed as a witness against Mr Trump by the Republican voters who may be called on to decide if the former vice president is worthy of the GOP presidential nomination, as Mr Pence is expected to mount a campaign for the presidency in next year’s election.

Citing sources familiar with the matter, CBS News reported that the Justice Department documents ask Judge Howell to enforce a grand jury subpoena that was served on Mr Pence several weeks ago.

The department’s latest attempt to compel Mr Pence to give evidence is a sign that Mr Smith, a former war crimes prosecutor who returned to the US from The Hague after Attorney General Merrick Garland appointed him to oversee probes into Mr Trump’s actions after the 2020 election and his alleged unlawful retention of classified documents at his Palm Beach, Florida residence, is moving quickly to put evidence of Mr Trump’s actions before a grand jury that could eventually asked to issue an unprecedented criminal indictment against the twice-impeached ex-president.

Several of Mr Pence’s former White House aides, including his ex-chief of staff Marc Short and his former top White House lawyer, Greg Jacob, have already given evidence before the grand jury being supervised by Mr Smith.