Judge’s decision that compelled Pence to testify in Jan. 6 probe unsealed

A federal judge has partially unsealed his decision that required former Vice President Mike Pence to testify in special counsel Jack Smith’s probe into the Jan. 6, 2021, insurrection and efforts to overturn the results of the 2020 presidential election. 

U.S. District Judge James Boasberg, the chief judge for the district court for Washington, D.C., ruled at the end of March that Pence was required to testify before the grand jury in the investigation about most topics related to his role as vice president in certifying the election results, in compliance with a subpoena issued to him. 

The unsealing of the ruling Friday reveals that Boasberg ordered Pence to answer most of the special counsel office’s questions about his role in the election and the pressure he received to overturn the results, with a couple of exceptions. 

Pence had argued that he should not have to testify because he is protected by the Constitution’s “speech or debate” clause, which protects members of Congress from having to be “questioned in any other place” about any statements they make during congressional sessions. He put forward an untested legal theory that since he served as president of the Senate and presided over the houses of Congress during the certification of the results, he should not be required to testify. 

But Boasberg found the clause only provides Pence narrow exceptions to what he was required to discuss in testimony. The judge cited past Supreme Court cases that found the clause does not protect conversations in which the “principal function” is to press a legislator to act unlawfully. 

“The bottom line is that conversations exhorting Pence to reject electors on January 6^th are not protected,” Boasberg wrote. 

He found that Pence’s argument would be too broad, protecting any conversations the vice president had that educated a lawmaker on a matter before them, even if only “incidentally.” 

Boasberg did note two exceptions where Pence could avoid questions: his speech on the Senate floor while certifying the election results, and his preparation for it and internal staff advice between Pence and his aides about his authority on Jan. 6. 

Former President Trump repeatedly called on Pence to reject the results of certain key states he lost in the 2020 election, while Pence maintained that he only had a ceremonial role in counting the votes and could not reject any state’s decision. 

Pence testified for several hours before the grand jury in April. He previously included some details of the conversations he had with Trump about certifying the vote in the memoir he released in November.