The ruling by newly minted chief district judge James Boasberg should surprise no one.
In a ruling that should surprise no one, former vice president Mike Pence has been ordered to testify before the grand jury in the Justice Department special counsel’s investigation of his former boss, Donald Trump, over the former president’s suspected obstruction of Congress’s January 6, 2021, joint session to ratify the Electoral College victory of President Biden.
The compulsion to testify results from two rulings issued yesterday by Chief Judge James E. Boasberg of the federal district court in Washington, D.C. The rulings are under seal because federal law makes grand-jury matters secret.
The separate but related rulings rejected privilege claims raised on different grounds by Trump and Pence.
Trump relied on the doctrine of executive privilege in arguing that Pence, having been a high ranking executive official in the Trump administration, should not be required to testify about conversations and interactions with the former president. Trump has made this argument in connection with a number of former Trump administration officials, and it has repeatedly been knocked down by the district court and the D.C. Circuit Court of Appeals.
Pence relied on essentially the same executive-privilege claim in fending off efforts by the House January 6 committee to obtain his testimony, arguing that to submit to a congressional demand for his testimony would offend separation-of-powers principles. But the former vice president changed tack when subpoenaed by Smith, who is technically an executive branch official. (A special counsel is a lawyer recruited from outside the government to assume an investigation as to which the Justice Department is beset by a conflict of interest; but in carrying out his duties, the special counsel is beholden to Justice Department policies, reports to the attorney general, and exercises the president’s power – i.e., executive power.)
In the context of Smith’s January 6 investigation, Pence claimed that, because the Constitution makes the vice president the presiding officer of the Senate, he should be seen as a legislative official in connection with the duties he was performing at the January 6 joint session. Ergo, the argument went, it would offend separation-of-powers principles for him to submit to an executive-branch demand for his testimony.
As I contended when Pence first announced this position, it is legally meritless. By its plain language, the Constitution’s speech or debate clause, on which Pence based his argument, provides testimonial immunity only to “the Senators and Representatives” of the legislative branch created by Article I. Pence was neither of these at the relevant time – he was vice president, an executive position created by Article II. Moreover, a court would be hard-pressed to abide Pence’s claims that he, alone among all government officials, combined both executive and legislative powers, and was thus immune from answering to either of those branches – ironically, on a separation of powers theory.
The New York Times reports that Chief Judge Boasberg rejected Trump’s executive privilege claim and Pence’s speech-or-debate clause claim. The Times is relying on two unidentified sources the paper says are “familiar with the matter.”
As I explained in a column yesterday, in the federal district court in Washington, D.C., a local rule makes the court’s chief judge responsible for ruling on disputes arising out of grand-jury proceedings. Last week, Boasberg succeeded Judge Beryl Howell as chief judge. In her seven years as chief judge, Howell made significant rulings in grand-jury investigations implicating Trump, including special counsel Robert Mueller’s Russiagate probe, and the January 6 and the Mar-a-Lago documents investigations. The latter were run by Biden Justice Department prosecutors until late last year, when Attorney General Merrick Garland appointed Smith to run them.
Like Howell, Boasberg is an Obama appointee. He assumed the bench in 2011. He previously served as the chief judge of the Foreign Intelligence Surveillance Court (FISC), including in the time frame when the Justice Department inspector general uncovered evidence of significant FBI abuses. Boasberg was also the presiding judge in Russiagate special counsel John Durham’s prosecution of former FBI lawyer Kevin Clinesmith, who pled guilty to misleading another FBI official in connection with an application to the FISC to monitor former Trump campaign adviser Carter Page.
The Pence decision is Boasberg’s first important grand-jury ruling as chief judge. There will likely be others.
Pence and Trump could appeal to the D.C. Circuit. That tribunal has not been sympathetic to efforts by Trump and former officials in his administration to withhold evidence from congressional or Justice Department investigators.
Last week, when Trump sought to appeal then–Chief Judge Howell’s order that his personal attorney, M. Evan Corcoran, provide testimony and documentary evidence to the grand jury in connection with Smith’s parallel investigation of Trump’s retention of government intelligence at Mar-a-Lago, a D.C. Circuit panel (made up of Obama and Biden appointees) gave him only a few hours (i.e., until midnight) to file a brief, asked Smith to respond by 6 a.m., and then issued a ruling by afternoon, unanimously rejecting Trump’s claims.