Trump can't block Mike Pence from testifying before grand jury, appeals court rules

Mike Pence ordered to testify in Trump, Jan. 6 probe | LiveNOW from FOX

A federal judge has ordered former Vice President Mike Pence to testify before a grand jury about conversations he had with former President Donald Trump in which they allegedly talked about how to overturn the 2020 election.

A federal appeals court on Wednesday night moved former Vice President Mike Pence closer to appearing before a grand jury investigating efforts to undo the results of the 2020 presidential election, rejecting a bid by lawyers for former President Donald Trump to block the testimony.

It was not immediately clear what day Pence might appear before the grand jury, which for months has been investigating the events preceding the Jan. 6, 2021, insurrection at the U.S. Capitol and efforts by Trump and his allies to subvert the election outcome. But Pence's testimony, coming as he inches toward a likely entrance in the 2024 presidential race, would be a milestone moment in the investigation and would likely give prosecutors a key first-person account as they press forward with their inquiry.

The order from the three-judge panel of the U.S. Court of Appeals of the District of Columbia Circuit was sealed and none of the parties are mentioned by name in online court records. But the appeal in the sealed case was filed just days after a lower-court judge had directed Pence to testify over objections from the Trump team.

U.S. President Donald Trump listens as Vice president Mike Pence answers questions during the daily briefing of the coronavirus task force in the Rose Garden of the White House on April 27, 2020 in Washington, DC. (Photo by Win McNamee/Getty Images)

A lawyer for Pence and a spokesman for Trump did not immediately return emails seeking comment, and a spokesman for the Justice Department special counsel leading the investigation declined to comment.

The appeal was decided by Judge Gregory Katsas, a Trump appointee, and judges Patricia Millett and Gregory Wilkins, both appointees of former President Barack Obama. It was not clear if lawyers for Trump might ask the entire appeals court to hear the matter.

Pence was subpoenaed to testify earlier this year, but lawyers for Trump objected, citing executive privilege concerns. A judge in March refused to block Pence's appearance, though he did side with the former vice president’s constitutional claims that he could not be forced to answer questions about anything related to his role as presiding over the Senate’s certification of votes on Jan. 6.

A spokesman for Pence subsequently said that the former vice president would not appeal and that his arguments about the Constitution's speech or debate clause, which is intended to protect members of Congress from being questioned about official legislative acts, had been vindicated.

Vice president-elect Mike Pence and Republican president-elect Donald Trump shake hands during his election night event at the New York Hilton Midtown in the early morning hours of November 9, 2016 in New York City. (Photo by Mark Wilson/Getty Images

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"We’ll obey the law, we’ll tell the truth," Pence said in an interview with CBS News’s "Face the Nation" that aired Sunday. "And the story that I’ve been telling the American people all across the country, the story that I wrote in the pages of my memoir, that’ll be the story I tell in that setting."

Pence has spoken extensively about Trump’s pressure campaign urging him to reject Biden’s victory in the days leading up to Jan. 6, including in his book "So Help Me God." Pence, as vice president, had a ceremonial role overseeing Congress’ counting of the Electoral College vote, but did not have the power to affect the results, despite Trump’s contention otherwise.

Pence has said that Trump endangered his family and everyone else who was at the Capitol that day and history will hold him "accountable."

"For four years, we had a close working relationship. It did not end well," Pence wrote, summing up their time in the White House.

The special counsel leading the investigation, Jack Smith, has cast a broad net in interviews and has sought the testimony of a long list of former Trump aides, including ex-White House counsel Pat Cipollone and former adviser Stephen Miller.

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Smith is separately investigating Trump over the potential mishandling of hundreds of classified documents at his Florida estate, Mar-a-Lago, as well as possible efforts to obstruct that probe. On Wednesday, Trump's lawyers in that investigation called the Justice Department investigation "severely botched" and "politically infected" and urged the House Intelligence Committee to step in by holding hearings and introducing legislation to correct classified document handling procedures in the White House and standardize procedures for presidents and vice presidents for when they leave office.

"DOJ should be ordered to stand down, and the intelligence community should instead conduct an appropriate investigation and provide a full report to this Committee, as well as your counterparts in the Senate," the lawyers wrote.

It is not clear when either of the special counsel’s investigations will end or who, if anyone, will be charged.