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Pence To Fight Special Counsel Subpoena For 2020 Election Probe

Former Vice President Mike Pence is preparing to resist a grand jury subpoena for testimony about former President Trump’s push to overturn the 2020 election. Pence’s decision to challenge Special Counsel Jack Smith’s request has little to do with executive privilege. Rather, Pence is set to argue that his former role as president of the Senate, a member of the legislative branch, shields him from certain Justice Department demands, reports Politico. Pence's allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work, a language known as the “speech or debate” clause. The clause, Pence's allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard. “He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said a source familiar with Pence’s thinking. “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.”

Pence’s planned argument comes after an FBI search after his attorney’s voluntary report of classified material in his possession last month, drawing him into a thicket of document-handling drama that’s also ensnared Trump and President Biden. While Pence's aides say he’s taking this position to defend a separation of powers principle, it will allow him to avoid being seen as cooperating with a probe that is politically damaging to Trump, who remains the leading figure in the Republican Party. Pence is preparing to launch a presidential campaign against his one-time boss. Aides expect the former vice president to address the subpoena during a visit to Iowa on Wednesday. Regardless of its political consequences, the argument from Pence’s camp means Smith could be in for a legal mess. That’s because the legal question of whether the vice president draws the same “speech-or-debate” protections as members of Congress remains largely unsettled, and constitutional scholars say Pence's raising the issue will almost certainly force a court to weigh in. That could take months. Although vice presidents aren’t technically senators, they are charged with breaking tie votes in the upper chamber. And every four years, on Jan. 6, they lead the electoral vote count that facilitates the transfer of power from one administration to the next. Trump’s months-long crusade to pressure his vice president to derail Biden’s win, which is central to Smith’s investigation, focused entirely on Pence’s duties as Senate president, which legal scholars say lends credence to Pence’s case.

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