Former vice-president Mike Pence is preparing to challenge a grand jury subpoena issued by special counsel Jack Smith, the federal prosecutor charged with investigating Donald Trump’s alleged election interference as well as the former president’s potential mishandling of classified documents.
Pence’s legal challenge rests not on executive privilege but rather on his former legislative role as president of the Senate, according to a report in Politico. Pence’s advisers argue that a constitutional provision known as the “speech or debate” clause shields congressional officials from legal proceedings stemming from their work. Cooperating with federal prosecutors may jeopardize the separation of powers outlined in the Constitution, they argue.
“He [Pence] thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” an anonymous source familiar with the matter told Politico. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”
The legal maneuvering would be “the first time it’s ever been clearly expressed that the vice president is claiming his own constitutional privilege,” a former aide of Senate Minority Leader Mitch McConnell (R., Ky.) told Politico.
The novel legal challenge comes after an ABC News report said Smith had reached an agreement concerning the subpoena after several months of negotiations with the former vice-president’s legal team. However, the FBI’s search of Pence’s personal residence in Carmel, Ind., on Friday seems to have changed the former vice-president’s demeanor.
Pence initially cooperated with federal authorities following the discovery of about a dozen classified documents at his home in January, contacting the National Archives soon after they were found.
“Vice President Pence was unaware of the existence of sensitive or classified documents at his personal residence,” Greg Jacob, a representative of vice president Pence told the National Archives in a letter obtained by CNN. “Vice President Pence understands the high importance of protecting sensitive and classified information and stands ready and willing to cooperate fully with the National Archives and any appropriate inquiry.”
Following the FBI search of Pence’s home, one additional classified document was found.
However, sources close to the matter told Politico that the growing drama surrounding the ongoing investigation into Trump’s potential mishandling of classified material is prompting Pence to reconsider his approach. As long as Trump remains the Republican Party’s central personality, Pence does not want to be seen as overly cooperative with federal prosecutors ahead of what many anticipate to be his own 2024 presidential run.