Former Vice President Mike Pence on Wednesday vowed to fight a subpoena to testify before a grand jury investigating former President Trump’s efforts to overturn the 2020 election, saying he was prepared to go to the Supreme Court if necessary.
“I’m going fight the Biden DOJ’s subpoena for me to appear before the grand jury because I believe it’s unconstitutional, and it’s unprecedented,” Pence told reporters after an event in Iowa.
“I’m aware that President Trump is going to bring a claim of executive privilege,” he added. “That will be his claim to make. That’s his fight. My fight is on the principle of separation of powers in the Constitution of the United States.”
A source familiar with the matter first confirmed to The Hill on Tuesday Pence’s plans to fight the subpoena from special counsel Jack Smith, who is overseeing investigations into Trump’s conduct around Jan. 6, 2021, as well as the former president’s handling of classified documents.
Pence and his team say that serving as the former president of the Senate essentially makes him a member of the legislative branch and he would therefore be shielded from the subpoena under the “speech and debate” clause of the Constitution.
The former vice president reiterated his previous comments both publicly and in his memoir that Trump was “wrong” to pressure Pence to reject the electoral votes on Jan. 6 and overturn the election. Pence added that Trump’s words were “reckless” and endangered him, his family and others in the Capitol on Jan. 6.
“But that said, under the Constitution, in this moment, I believe my duty is also clear,” Pence said. “And that is, the Constitution prohibits an executive branch from summoning anyone into court for their legislative actions or duties, and on the day of Jan. 6, I was acting as president of the Senate, presiding over a joint session described in the Constitution itself.”
Pence told reporters he was willing to take the case all the way to the Supreme Court if needed, foreshadowing a likely drawn-out legal battle unless Smith decides Pence’s testimony is not critical to his case.
Legal experts told The Hill that Pence’s claim is untested and may not hold up in court, believing the vice president is clearly elected to the executive branch of government and therefore does not enjoy the same privileges as those in the legislative branch.
Some experts, however, believe that Pence may have a case given his role on Jan. 6 presiding over the certification of votes was in his function as president of the Senate.
Pence spent Wednesday in Iowa and Minnesota with parents’ rights activists pushing back against a policy adopted last year by a school district near Cedar Rapids, Iowa, allowing transgender students to request a support plan to help them socially transition at school, with or without their parents’ permission.
The former vice president drew sizable crowds, including media, during stops in Cedar Rapids, Iowa, and Minneapolis, where he railed against the “nanny state” that had infringed on parents’ rights to have a say in what their children are doing and learning in schools.
Giving parents more autonomy over their children’s education has become a buzzy issue for conservatives dating back to 2021, when the issue helped propel Virginia Gov. Glenn Youngkin (R) to victory.
It was the latest of several trips to Iowa for Pence as he meets with voters, party activists and GOP leaders as he weighs a possible 2024 presidential campaign.
Pence is expected to decide in the coming weeks whether to declare a bid for president in 2024. Doing so would pit him against his old boss, who he has openly criticized over his conduct around Jan. 6, but has otherwise avoided attacking.
By fighting the subpoena, Pence would punt the issue of testifying about Trump’s conduct that day potentially months down the road, keeping it at arms’ length as he prepares a possible campaign launch.
Pence was in Iowa the same day former Ambassador to the United Nations Nikki Haley officially announced her candidacy for president, becoming the only challenger to Trump to formally jump into the 2024 race.