The U.S. Court of Appeals in Washington, D.C., rejected former President Trump’s emergency bid to block former vice president Mike Pence from testifying in the probe of Trump's bid to subvert the 2020 election, Politico reported. Though the order remains sealed to protect grand jury secrecy, Trump had appealed a district judge’s order that required Pence to testify. Pence has said he would follow the orders of the court. Trump still could appeal to the Supreme Court or the full D.C. Circuit. For special counsel Jack Smith, the ruling is a victory. Smith subpoenaed Pence in February, prompting separate challenges by both Trump and Pence. While Trump argued that Pence’s testimony should be barred or limited by executive privilege, Pence took a different tack. He contended that his role presiding over Congress on Jan. 6, 2021, fulfilling his constitutional role as president of the Senate, entitled him to immunity under the “speech or debate” clause, which protects Congress from Executive Branch intrusion.
Chief U.S. District Judge James Boasberg rejected Trump’s argument but agreed with Pence that the congressional immunity applied on certain topics, a decision that for the first time found that vice presidents enjoy a form of privilege. Although Boasberg’s ruling was narrower than Pence’s attorney, Emmet Flood, had argued for, Pence opted not to appeal. Trump sought an emergency order from the appeal court blocking Boasberg’s ruling. But Wednesday’s order, a unanimous ruling by Judges Patricia Millett, Robert Wilkins, and Gregory Katsas, rejected that effort. Millett and Wilkins are Obama appointees, while Katsas is a Trump appointee. It’s unclear when Pence will appear before the grand jury. Trump’s previous emergency appeals — which have nearly all failed — have occurred just days before witnesses were scheduled to appear.
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