WASHINGTON — Donald Trump is appealing a court decision that would require former Vice President Mike Pence to appear before a federal grand jury investigating efforts to undermine the 2020 presidential election, according to a person familiar with the matter.
A federal judge in Washington in late March rejected the former president’s effort to argue that executive privilege should block Justice Department special counsel Jack Smith’s office from questioning Pence.
Trump appealed that ruling to the U.S. Court of Appeals for the D.C. Circuit in recent days, according to the person, who requested anonymity to discuss sealed proceedings.
U.S. District Chief Judge James Boasberg had separately ruled on a claim Pence raised invoking legislative privilege against the subpoena for his testimony, but Pence’s camp announced last week that he wouldn’t appeal that decision.
The judge’s ruling isn’t public because it relates to sealed grand jury proceedings, but Pence’s team previously released a statement describing the decision as a win because it “affirmed for the first time in history that the Speech or Debate Clause extends to the vice president of the United States.”
Peter Carr, a spokesperson for Smith’s office, declined to comment. A spokesperson for Trump did not immediately respond to a request for comment.
Pence had been the subject of a pressure campaign by Trump and other allies to delay or halt the certification of Joe Biden’s win by Congress on Jan. 6, 2021, according to public testimony from several former top aides and White House lawyers to a special congressional committee. The vice president serves as the presiding officer of that joint session, given his dual role as president of the U.S. Senate.
The day before the Jan. 6 proceeding, Pence issued a statement making clear that he wouldn’t interfere, rejecting legal theories that he had the power to “unilaterally” act.
Pence hasn’t publicly confirmed exactly what he will testify about following Boasberg’s ruling on his legislative privilege claim. Pence’s lawyer had presented the novel theory that the Speech or Debate Clause in the U.S. Constitution — typically invoked to shield lawmakers from being forced into court over their legislative activities — should apply to him as well.
Judges have repeatedly rebuffed Trump’s efforts to stop federal prosecutors from putting former top administration officials before the grand jury. On April 4, the D.C. Circuit denied Trump’s request for an immediate order to stop several ex-White House officials from being forced to testify while his lawyers pursued a full appeal.
Smith is overseeing a separate federal criminal probe into whether Trump or others mishandled classified material after he left the White House and whether anyone tried to obstruct the efforts by the National Archives and Justice Department to retrieve U.S. government records. Trump earlier this year lost a privilege fight to stop prosecutors from putting his attorney Evan Corcoran before a grand jury for a second time.
