The Washington PostDemocracy Dies in Darkness

Opinion Pence must testify. What he’ll have to reveal is an open question.

Former vice president Mike Pence delivers remarks at the Calvin Coolidge Presidential Foundation conference at the Library of Congress on Feb. 16. (Jonathan Ernst/Reuters)
5 min

Former vice president Mike Pence will finally have to perform his legal obligation to explain, under oath, what he knows about the Jan. 6, 2021, coup attempt. That was the general directive from federal district court in a dispute over the scope of testimony he will have to give to the grand jury looking into the armed insurrection. However, the precise contours of what that entails are far from clear.

Either side could appeal. And if they do not, and questions about the propriety of certain questions arise in the grand jury room, they could be back before U.S. District Judge James Boasberg once again.

The Post reports, “Boasberg ruled, in essence, against [Pence’s] executive privilege claim, which judges have repeatedly rejected for a host of Trump witnesses in criminal investigations involving the former president.” However, special counsel Jack Smith was not given free rein. The Post adds, “Boasberg also upheld part of the legislative claim made by Pence, finding that the ‘speech or debate’ clause of the Constitution does prevent prosecutors from grilling the former vice president about his duties in Congress on Jan. 6, according to the people familiar with the ruling.”

The order is under seal, so we don’t know how specific Boasberg was in laying out what Pence can and cannot be asked about. What if Pence, for example, on Jan. 6 itself learned further details of the effort to weaponize the Justice Department or to strong-arm electors? It would be absurd if that information is shielded from questioning. And what if Pence were to claim that all his conversations with former president Donald Trump concerned “preparation” for his duties on Jan. 6 and therefore are protected under the speech or debate clause?

Constitutional scholar Laurence H. Tribe tells me, “Without attempting to define the outer boundaries of the shield provided by the Speech and Debate Clause, the precedents governing its application at least make clear that the Clause gives Pence no right to withhold from the grand jury what he heard Trump or anyone around Trump say — to him or anyone else — relevant to the electoral college slates or their certification, or pertinent to the disruption of the Jan. 6 session by the insurrectionists.” Pence might be able to conceal conversations with members of Congress on that day about how the vote would unfold, but the meat of what Smith wants to hear — e.g., the plan to subvert the Constitution by intimidating state officials, the effort to squeeze Pence, the scheme to concoct phony electors — should not be blocked.

In all likelihood, Smith will find plenty of room to obtain the facts he really needs. As NBC reports, “Boasberg ruled that while Pence does have some limited protections … the immunity does not prevent him from testifying about conversations related to alleged ‘illegality’ on Trump’s part.” That makes perfect sense. The speech or debate clause is not intended to shield the executive branch from testimony in a criminal matter — especially when the subject matter is a possible illegal conspiracy to block Congress from performing its appropriate role in a presidential succession. After all, the purpose of the clause is to protect Congress’s power, not to undermine it.

As Andy Wright and Ryan Goodman wrote for Just Security, there are plenty of topics that Smith can ask about that the speech or debate clause could not conceivably protect:

“[Were] you aware of internal Campaign research or outside research conducted on behalf of the Campaign that showed there was no widespread election fraud?”
“What were your communications and any coordination with the Trump Campaign regarding the campaign’s post-election efforts in Georgia”? ....
“What actions did Trump expect you to take outside of your proper legislative duties?”
“What pressure did Trump apply to encourage you to violate your oath?

Those questions are designed to extract the sort of information Smith needs to prove Trump’s intent to obstruct Congress and defraud the country. If Pence can confirm that Trump was part of a deliberate plot to reverse the results (after he lost in court and could find no evidence of fraud), Smith might have the nuggets of evidence he needs to prove Trump’s corrupt intent. As former House impeachment counsel Norman Eisen tweeted, “Proving intent is the hardest part of any criminal case. But now that Pence has to testify in the 1/6 probe, it’s about to get a whole lot easier for Jack Smith.”

Frankly, it’s time for Pence to stop trying to appeal to the MAGA base by withholding relevant, probative information about Trump’s attempt to subvert the election results. MAGA voters, to be blunt, are unlikely to select Pence for the 2024 nominee under any circumstances. After he failed to do Trump’s bidding on Jan. 6, Pence lost favor with Trump and his MAGA cultists. Pence would do well to put all those considerations aside, cooperate with the special counsel and testify truthfully and fully rather than come up with exotic excuses to avoid testifying.

One would think Pence would want what could well be his last consequential public action to be remembered as “Pence did his duty and provided information needed to protect American democracy,” not “Pence covered for Trump, despite risk of subverting the investigation into armed insurrection.”

Surely, after thwarting Trump on Jan. 6, Pence has some desire to preserve his own reputation, not shred what is left of it.