Pence Will Use Novel Legal Argument To Fight Special Counsel Subpoena

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Mary Lou Masters Contributor
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Former Vice President Mike Pence will challenge Special Counsel Jack Smith’s request for information regarding Jan. 6 and former President Donald Trump’s involvement, according to Politico.

Pence will cite his previous membership of the legislature as the president of the Senate, which would prevent him from commenting on such proceedings, according to Politico. The “speech and debate” clause protects members of the legislature from engaging in legal matters that relate to their role, which would be a “first time” argument, Roy Brownell, Republican Sen. Mitch McConnell’s former counsel, told Politico.

If invoked, it would be “the first time it’s ever been clearly expressed that the vice president is claiming his own constitutional privilege,” Brownell said. Pence believes a testimony in this investigation would violate the Constitution’s separation of powers, Politico reported.

“Since there is a legislative function involved in the vice president presiding over the Senate, a court very well could decide that it must address the scope of the speech or debate privilege and whether it would apply in this case,” political scientist Mark Rozell told Politico.

Some argue that Pence’s strategy will not work. While Pence was the president of the Senate, he would not be protected under the clause because it specifically refers only to “Senators and Representatives,” Neil Eggleston, former White House counsel, told Politico.

A source familiar Pence’s thinking confirmed to the Daily Caller News Foundation that the subpoena will be challenged via the speech and debate clause. (RELATED: Special Counsel Subpeonas Pence Over Interactions With Trump Prior To Jan. 6 Riots)

“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,” a source close to Pence told Politico.

The subpoena came just a few weeks after the FBI initially obtained classified documents from Pence’s Indiana home.

The special counsel’s office did not immediately respond to the DCNF’s request for comment.

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