A federal judge ordered the release of legal documents related to a fight over the grand jury testimony of former Vice President Mike Pence, who was subpoenaed in the Jan. 6 investigation involving former President Donald Trump.
Chief Judge James Boasberg, who presides over grand jury-related matters in Washington, held on Friday that Pence’s public statements about the secret grand jury proceedings weighed in favor of making the documents available, with redactions. The court released them a few hours later, after the government indicated it would not appeal.
Pence spent several hours testifying to the grand jury in April as part of Justice Department Special Counsel Jack Smith’s probe into whether Trump or others obstructed the peaceful transition of power by attempting to prevent Congress from certifying President Joe Biden as the winner of the 2020 election.
Boasberg’s redacted opinion on March 27 shows that he agreed with Pence that a constitutional protection that shields members of the legislative branch against being forced to testify about their official activities did apply to vice presidents serving in their dual role as president of the Senate. Yet he also wrote that the protection didn’t “cover the vast majority of what the special counsel seeks to ask him about.”
The judge wrote that he was “largely” denying Pence’s motion and shielding him against “only a few narrow lines of questioning.”
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Boasberg redacted portions of his opinion that touched on the specifics of what Pence was being asked to discuss. But he did make clear that the legal protection at issue, known as the Speech or Debate Clause in Article I of the US Constitution, generally wouldn’t apply to testimony about efforts to urge a legislator to act unlawfully — for instance, Pence’s recollection of conversations urging him to reject electors when Congress met to certify the election on Jan. 6, 2021.
“There is no dispute in this case that Pence lacked the authority to reject certified electoral votes,” the judge wrote.
Pence wouldn’t have to testify about acts “integral” to his performance of his duties on Jan. 6, such as legal advice he received from aides, but the judge rejected his push to broaden the protection to cover any “preparations” leading up to Jan. 6. The judge also rebuffed the government’s argument that the shield shouldn’t apply to the vice president.
After Boasberg’s opinion came down, Pence had announced that he wouldn’t appeal because he was satisfied that the judge had agreed with him on the general principle that the constitutional protections for legislative activity did extend to the vice president.
The Jan. 6 investigation is separate from Smith’s investigation into Trump’s handling of classified material, which resulted in an indictment unsealed on Friday, that includes 37 counts against the former president on charges including willful retention of national defense information, corruptly concealing documents, conspiracy to obstruct justice, and making false statements. The indictment includes a 38th count against Walt Nauta, a Trump aide, on charges in connection with the alleged conspiracy.
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The newly unsealed copy of his March court brief shows that his lawyer, Emmet Flood, acknowledged that Pence “has openly discussed President Trump’s effort to have him reject electoral votes from the 2020 election” in interviews and a book.
“His position in this litigation is therefore not driven by a desire to preserve confidence or protect secrets. He is not reluctant to answer questions about events relating to his legislative role in the Jan. 6 proceedings. But he is not willing to do so under compulsion or the threat of compulsion,” Flood wrote. Again and again, the motion cites the vice president’s role as president of the Senate, “a constitutionally created legislative role.” Yielding to the subpoena, his lawyers argued, “would contribute to the erosion of an important separation of powers principle.”
Trump had separately fought the subpoena for Pence’s testimony on executive privilege grounds and also lost before Boasberg. His lawyers unsuccessfully appealed, and the April 26 order from the US Court of Appeals for the DC Circuit cleared the way for Pence’s appearance at court the following day.
A coalition of news organizations, including Bloomberg News, had argued that Boasberg should release materials related to the subpoena fight.
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Boasberg wrote in his decision on Friday that although grand jury matters are usually handled behind closed doors, Pence “nudged them ajar when he revealed in a series of public statements that the grand jury had subpoenaed him, that he had initially refused to testify, and that this court had stepped in to referee the resulting constitutional dispute.”
“The heart of what the press asks for here, and what the court plans to release, is the legal discussion surrounding the dispute Pence has already revealed,” he said.
The court also released the government’s opposition brief and a heavily redacted transcript of the March 23 hearing before Boasberg.
Pence, who announced his candidacy for president this week, has made his fidelity to the Constitution a key part of his argument as to why he — and not Trump — should be the Republican nominee in 2024.
Pence’s presidential campaign declined to comment on the ruling.
(Updates to add details on order, in third paragraph, details on indictments in fifth paragraph, and information from unsealed documents throughout)
