Pence Must Testify to Jan. 6 Grand Jury, Judge Rules
A federal judge has ordered former Vice President Mike Pence to appear in front of a grand jury investigating former President Donald J. Trump’s attempts to overturn the 2020 election, largely sweeping aside two separate legal efforts by Mr. Pence and Mr. Trump to limit his testimony, according to two people familiar with the matter.
The twin rulings on Monday, by Judge James E. Boasberg in Federal District Court in Washington, were the latest setbacks to bids by Mr. Trump’s legal team to limit the scope of questions that prosecutors can ask witnesses close to him in separate investigations into his efforts to maintain his grip on power after his election defeat and into his handling of classified documents after he left office.
In the weeks leading up to the Capitol attack by a pro-Trump mob on Jan. 6, 2021, Mr. Trump repeatedly pressed Mr. Pence to use his ceremonial role overseeing the congressional count of Electoral College votes to block or delay certification of his defeat.
Prosecutors have been seeking to compel Mr. Pence to testify about Mr. Trump’s demands on him, which were thoroughly documented by aides to Mr. Pence in testimony last year to the House select committee that investigated the Jan. 6 riot and what led up to it.
This month, Mr. Trump’s lawyers asked Judge Boasberg’s predecessor as chief judge for the court, Beryl A. Howell, to limit Mr. Pence’s testimony by claiming that certain issues were off limits because of executive privilege, which protects certain communications between the president and some members of his administration.
At the same time, lawyers for Mr. Pence asked to limit his testimony by arguing that his role as the president of the Senate meant he was protected from legal scrutiny by the executive branch — including the Justice Department — under the Constitution’s “speech or debate” clause. That provision is intended to protect the separation of powers.
While Judge Boasberg issued a clear-cut ruling against Mr. Trump’s attempts to assert executive privilege, his ruling on the “speech or debate” clause was more nuanced, according to a person familiar with the matter.
Understand the Events on Jan. 6
- Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.
- A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.
- Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.
- Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.
The judge affirmed the idea that Mr. Pence had some protection under “speech or debate” based on his role in overseeing the certification of the election inside the Capitol on Jan. 6. But Judge Boasberg also said that Mr. Pence would have to testify to the grand jury about any potentially illegal acts committed by Mr. Trump, the person familiar with the matter said.
People close to Mr. Pence have said for weeks that they expected he would have to testify to some degree to the grand jury. The New York Times reported that the Justice Department had been seeking an interview with Mr. Pence as far back as late last year.
Judge Boasberg’s decisions concerning Mr. Pence came a little more than week after Judge Howell issued a ruling that more than a half dozen other former Trump administration officials — including Mark Meadows, Mr. Trump’s final chief of staff — could not invoke executive privilege to avoid testifying to the grand jury investigating Mr. Trump’s attempts to overturn the election.
The ruling by Judge Howell, who stepped down as chief judge on March 17, paved the way for grand jury testimony from Mr. Meadows; one of his deputies, Dan Scavino; Robert C. O’Brien, who served as national security adviser; John Ratcliffe, the former director of national intelligence; and Stephen Miller, one of Mr. Trump’s speechwriters and top advisers.
Mr. Trump and some witnesses in the election inquiry have tried for months to limit their scope of grand jury testimony, prompting a pitched behind-the-scenes battle waged — like all issues involving grand juries — in sealed court filings and closed-door hearings.
Mr. Pence was one of the last major witnesses to litigate the boundaries of his grand jury testimony. Two of his closest aides — Marc Short and Greg Jacob — were ordered to appear before the grand jury last year, as were two top lawyers in Mr. Trump’s White House, Pat A. Cipollone and Patrick F. Philbin.
In one of her final acts as chief judge, Judge Howell issued a similar ruling in the classified documents inquiry. She ordered that M. Evan Corcoran, a lawyer for Mr. Trump, would have to testify to the grand jury conducting that investigation in spite of assertions of attorney-client privilege he had made on Mr. Trump’s behalf.
In making her decision, Judge Howell found that prosecutors in the office of the special counsel, Jack Smith, who is overseeing both grand jury investigations, had met the threshold for what is known as the crime-fraud exception. That allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or services were used to further the commission of a crime.
In the federal inquiry into Mr. Trump’s efforts to remain in power, Mr. Pence has always been a potentially important witness given the central role he played by refusing to go along with Mr. Trump’s demands on Jan. 6 and the conversations he participated in at the White House in the weeks preceding the riot.
In public and in private, Mr. Trump tried to pressure Mr. Pence to take part in a plan to reject certification of Joseph R. Biden Jr.’s Electoral College victory.
Urging Mr. Pence to agree to flout the Constitution on the critical date of Jan. 6 was part of a plan by Trump supporters that also included creating at least the appearance that there were alternate slates of pro-Trump electors from swing states that had clearly been won by Mr. Biden. The electors plan is under scrutiny by federal prosecutors as part of the investigation being led by Mr. Smith, the special counsel overseeing the Trump-related investigations for the Justice Department.
Between Nov. 5, 2020, and Jan. 6, Mr. Pence was subjected to an intense pressure campaign from a range of Mr. Trump’s associates outside the government, including John Eastman, a lawyer working with the president, and from Mr. Trump himself. During that time, Mr. Pence had his counsel research what his powers were with regard to Jan. 6, and then, over time, made clear to Mr. Trump that he did not believe he had the authority that the president insisted he did.
In addition to shedding light on Mr. Trump’s role, testimony from Mr. Pence could also be important in the inquiry into other people involved in the efforts to keep Mr. Trump in office, including Mr. Eastman.
By Jan. 5, Mr. Trump’s efforts had become so intense that Mr. Short, Mr. Pence’s chief of staff, called the vice president’s lead Secret Service agent to his West Wing office to tell him that Mr. Trump was going to turn on Mr. Pence, and that they may have a security risk because of it.
The next day, Mr. Trump publicly pressured Mr. Pence in a rally address to a pro-Trump crowd at the Ellipse near the White House, then urged his followers to march “peacefully” and “patriotically” to the Capitol. Once there, hundreds swarmed the building, some chanting “Hang Mike Pence!”
Mr. Pence, who is considering a presidential campaign of his own, has since published a memoir in which he details some of the conversations that investigators are interested in having him speak to in a closed setting.