In a stern rebuke of former Vice President Mike Pence, the conservative former judge who advised Pence on how to handle the January 6, 2021, election certification vote is now warning of both the legal and political consequences of Pence’s plan to fight the grand jury subpoena by special counsel Jack Smith.
“We can expect the federal courts to make short shrift of this ‘Hail Mary’ claim and Mr. Pence doesn’t have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury,” former Judge J. Michael Luttig says in an op-ed published in The New York Times on Friday.
Luttig calls Pence’s vow to resist the subpoena a “dangerous gambit” and one that will invite an “embarrassing spectacle.”
“No prosecutor, least of all Mr. Smith, will abide this political gambit for long,” Luttig says.
The op-ed was published the day after CNN and others reported that federal prosecutors are asking a judge to compel Pence to testify in Smith’s probe.
In recent public comments, Pence has said he will fight the subpoena on the grounds that, under the Constitution’s Speech or Debate Clause, the executive branch cannot compel his testimony before a grand jury.
The clause shields lawmakers from certain law enforcement actions that target their legislative conduct. Pence and his team have argued that they believe the former vice president is also covered under it in the role he was serving, during Congress’ January 6, 2021, certification vote, as president of the Senate.
Luttig predicts in the op-ed that Pence’s arguments will fail, writing that even if the courts find that Pence is entitled to some protections under the constitutional provision, they will “unquestionably hold that Mr. Pence is nonetheless required to testify in response to Mr. Smith’s subpoena.”
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