Will Trump’s Speech or Debate Clause Argument Save Pence from Testifying Before Grand Jury?

Former President Donald Trump is attempting to block former Vice President Mike Pence from testifying before a grand jury as part of a criminal investigation into 2020 election interference.[0] Pence has argued that the Speech or Debate Clause of the Constitution should provide him with protection from such an action. However, analysts suggest that it is unlikely that a court would quash Pence's subpoena in its entirety on this ground.

The grand jury subpoena seeks documents and testimony related to the events of January 6, 2021, when the US Capitol was attacked by pro-Trump rioters as Congress prepared to certify the 2020 election results.[1] The Attorney General, Merrick Garland, appointed Jack Smith as the special counsel for the investigation.[2] Smith requested that Pence testify, Pence declined to testify, Smith issued a subpoena for Pence to testify, and Pence is now contesting the subpoena in court.[0]

Although the Speech or Debate Clause may protect Pence from questions related to his legislative capacity, it is likely that Special Counsel Jack Smith and the grand jury want to ask Pence questions that fall outside of this scope. Such questions could include inquiries into “Pence and his staff’s knowledge about and communications with and within the Trump Presidential Campaign” and “public speeches given outside of Congress”—such as statements made in Pence’s recent book.[3] Additionally, it may be difficult to determine whether certain lines of inquiry relate to Pence’s legislative, or official but nonlegislative, or personal/political capacity without hearing the specific question(s) at issue in context. Thus, it is likely that a court will require Pence to raise speech or debate objections on a question-by-question basis.[3]

The amount of time it may take for the closed proceedings to come to a conclusion is uncertain; however, it is feasible that the district court will settle the dispute, or that it will be challenged in a federal appeals court and potentially, in the end, to the US Supreme Court. Smith, known for swift action, has brought newfound speed to the Department of Justice's investigation into attempts to reverse the results of the 2020 election since taking charge.[1]

Ultimately, the courts may ultimately allow Pence to be questioned about his communications leading up to Jan. 6, with the possible exception of those that were entirely internal to Congress.[3] But the outcome of this case will remain uncertain until the courts have had a chance to make a ruling.

0. “Trump asks court to block Pence’s grand jury testimony in probe of 2020 election interference” AOL, 4 Mar. 2023, https://www.aol.com/amphtml/trump-asks-court-block-pence-194039033.html

1. “Trump seeks to block Pence's grand jury testimony in 2020 election interference probe – Local News 8” LocalNews8.com, 4 Mar. 2023, https://localnews8.com/politics/cnn-us-politics/2023/03/04/trump-seeks-to-block-pences-grand-jury-testimony-in-2020-election-interference-probe

2. “Budowsky: Mike Pence, democracy and the Republican Party’s future” The Hill, 28 Feb. 2023, https://thehill.com/opinion/3876477-budowsky-mike-pence-democracy-and-the-republican-partys-future/

3. “How Much Can the Speech or Debate Clause Protect Mike Pence?” Lawfare, 27 Feb. 2023, https://www.lawfareblog.com/how-much-can-speech-or-debate-clause-protect-mike-pence

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