We have learned that Donald Trump reportedly has moved to block Mike Pence from testifying to the grand jury in the special counsel probe. That move should fail, at least if the point is to win on the merits of the claim, as opposed to just causing more delay. And even then, the claim’s weakness might not win Trump as much delay as he wants.
To be sure, this legal maneuver was expected. As The New York Times reported:
The filing is unsurprising — Mr. Trump’s lawyers have repeatedly sought to assert executive privilege over former aides as a means of blocking testimony — but it underscores how much the Justice Department’s attempts to get Mr. Pence to testify in the investigation into Mr. Trump’s efforts to cling to power may be drawn out.
And drawing it out may be all that Trump and Pence accomplish — if that. I noted previously that the former president’s attempt to use executive privilege to block the former vice president from testifying to Jack Smith’s grand jury on executive privilege grounds is a long shot at best. There are multiple reasons for this, as I wrote last month:
So it’s at least unclear whether a former president can claim the privilege, saying nothing of whether the claim would succeed. Plus, the Supreme Court appeal over then-President Richard Nixon’s attempt to avoid subpoena compliance shows that a vague privilege assertion won’t do, and can be overcome by a specific need for evidence.
And because there are multiple legal defense claims swirling around the various Trump probes, I should point out that this is separate from Pence’s “speech or debate” gambit. That’s the one in which Pence basically claims that, because the vice president also presides over the Senate, he should get to enjoy the same immunity that lawmakers have.
While that “speech or debate” claim is clearly an attempt to avoid having to testify under oath — as opposed to a principled stance on “separation of powers,” as Pence has claimed…
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