Former vice president Mike Pence says he told Donald Trump during a private lunch 13 days after the 2020 election that he should accept defeat and prepare another presidential campaign if legal challenges to Joe Biden’s election victory failed in court.
That conversation is one of many that could soon land Pence, who is weighing a 2024 presidential campaign against his former boss, before a grand jury convened by Justice Department special counsel Jack Smith to investigate whether Trump or his advisers unlawfully interfered with the transfer of power after the 2020 election.
Emmet Flood, an attorney for Pence, appeared at a closed hearing Thursday before U.S. District Court Chief Judge James E. Boasberg in Washington to challenge the Smith subpoena of the former vice president on the grounds that some of the requested testimony concerns Pence’s role as president of the Senate and is therefore exempt from executive branch inquiry, according to a person familiar with the proceedings, who requested anonymity to discuss grand jury matters.
Flood was seen entering the courtroom by a Washington Post reporter at the courthouse, along with three lawyers for Trump: Jim Trusty, John Rowley and Evan Corcoran.
Pence’s advisers have privately accepted the possibility that the former vice president might have to testify against his former boss and likely political rival during an election season, according to a person familiar with the conversations who spoke on the condition of anonymity to discuss private planning conversations.
Pence has announced that he is challenging the subpoena he received from Smith based on Article 1, Section 6 of the U.S. Constitution, which protects members of the House and the Senate from facing questions from the executive branch for “any Speech or Debate in either House.” But both Pence and his advisers acknowledge that even if this claim of legislative privilege, arising from his role on Jan. 6, 2021, as the president of the Senate, is accepted by the courts, it does not offer a blanket protection against testifying before the grand jury.
Justice Department prosecutors have sought to learn whether Trump ever acknowledged losing the election and what specific efforts he took to block the certification of the election, according to two people familiar with the investigation, who spoke on the condition of anonymity to discuss the private process. Prosecutors believe Pence’s private conversations with Trump could shed light on either or both, they said.
Many conversations that Smith might be interested in, such as the one weeks after the election, were unrelated to Pence’s legislative role. Others probably fall into a legal gray area, because they could pertain to the planning by other executive branch officials who were seeking to influence the legislative process of certifying the 2020 electoral votes on Jan. 6.
Joshua Stueve, a spokesman for the Justice Department, declined to comment.
Pence publicly acknowledged the possibility of testifying in an interview broadcast Sunday on ABC News’s “This Week.”
“I’ve actually never asserted that other matters unrelated to January 6th would otherwise be protected by speech and debate,” Pence said. “We’re not asserting executive privilege, which may encompass other discussions, I believe, the president may well have brought a claim for that. But I just believe that the work that I did, preparing for and conducting my role as president of the Senate, is covered by the speech and debate clause.”
Such testimony could put Pence is a politically perilous position as he seeks to reintroduce himself to GOP voters. Trump has sought to argue that all the criminal investigations he now faces are motivated by corrupt and partisan prosecutors. Pence has publicly sided with Trump in part, saying the New York criminal probe into hush-money payments to an adult-film star was a “politically charged prosecution” and that he was “taken aback by the idea of indicting a former president” given the other crime challenges in New York.
Trump’s attorneys have tried to block testimony before the grand jury by advisers to Pence by arguing that it should be blocked by executive privilege, the Supreme Court precedent that holds Article II of the Constitution grants the president some privacy for his internal deliberations. Federal courts have overruled those objections, forcing at least one senior aide to Pence, Marc Short, to return to the grand jury for a second round of questioning. Though Short was arguably a part of the legislative process with Pence, he did not claim that the speech or debate clause of the Constitution prevented his testimony.
Grand jury proceedings are held in secret, and neither Smith nor Pence have said what matters Pence has been asked to speak about for the investigation. But Pence has spoken and written at length about a number of key moments that might be of interest to prosecutors.
In his book, Pence wrote about telling Trump’s son-in-law and senior adviser Jared Kushner on the day the election was called that he was not convinced fraud had cost Trump the election victory. He was present at the Nov. 11, 2020, meeting with Rudy Giuliani and Sidney Powell that resulted in the president giving them control of his legal strategy over his own campaign advisers.
Pence also wrote that Trump told him on Nov. 23 that Jay Sekulow, the president’s personal attorney, was not optimistic about the election challenges. On Dec. 5, Trump mentioned challenging the election in the House of Representatives for the first time, according to Pence, prompting him to ask his team to prepare a briefing on the procedures.
Ryan Goodman, a professor at New York University’s School of Law, said that a “speech or debate” claim by Pence probably would not apply to conversations unrelated to his legislative role under current precedent.
“It would not cover conversations with former president Trump and impressions he had about whether Trump lost the election, and whether Trump knew he lost the election. It would also not cover communications he would have with the Trump campaign,” Goodman said. “Because Pence properly maintains that his legislative role on Jan. 6 is purely ministerial, it could significantly limit the scope of the privilege, because it would mean that information about the false slate of electors was not relevant to his role in Congress that day.”
Conversations between Pence and Trump or his advisers about the vice president’s role to reject, delay or otherwise impede the certifications of electors may be privileged by the speech or debate clause, but legal scholars say the questions are novel. There is also an open question about whether Pence will be required by the courts to testify about those parts of his legislative activities he has already talked and written about publicly, even if they fall within the bounds of his legislative privilege.
Pence has disclosed multiple interactions with Trump during the weeks before the attack on the Capitol that concerned Pence’s role as presiding officer at the U.S. Senate on Jan. 6. In mid-December 2020, Pence wrote, Trump told him an ad from the Lincoln Project, which claimed that Pence would be signaling the election was “over” when he oversaw the certification of the election, “looked bad for you.”
On Dec. 13, Pence said, Trump suggested he not participate in the certification, saying, “If you want to be popular, don’t do it.” Trump further said that “it would be the coolest thing you could do” if Pence were to walk out of the Senate after the electoral count started, and that he would be “just another RINO” — Republican in Name Only — if he were to do otherwise, according to Pence. Trump made other similar comments to Pence over the coming weeks, Pence wrote.
Pence said he again advised Trump on Dec. 21, in another private lunch, against looking at the election “as a loss,” but rather “as an intermission.” Trump said he didn’t think the White House counsel was serving him well, Pence wrote. By New Year’s Day, Pence said, Trump was directly chiding him for resisting a lawsuit that sought judicial recognition that the vice president had “sole discretion” to determine which electoral votes to accept on Jan. 6.
“You’re too honest,” Pence said Trump told him.
A spokesman for Trump’s campaign did not respond to a request for comment.
Whether those or other conversations are protected under the speech or debate clause of the Constitution is a novel legal question, said Michael Stern, a former senior counsel to the U.S. House of Representatives. Courts may view Pence’s conversations with other executive branch officials about his role in the Senate as a form of information-gathering or as engaging in a type of lobbying, which could require Pence to deliver testimony.
“There is almost no precedent regarding whether the vice president is protected by speech and debate or not,” Stern said.
Pence has said he is willing to take his resistance to some testimony before the grand jury all the way to the Supreme Court, if necessary.
Jacqueline Alemany, Rachel Weiner and Carol D. Leonnig contributed to this report.
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