Mike Pence will not appeal a federal court ruling ordering him to testify in a special counsel probe into efforts by Donald Trump and his allies to subvert the 2020 election, a spokesman for the former vice president said Wednesday, teeing up a historic moment in both the special counsel's investigation and for the presidency.
Pence is poised to recount for the first time under oath his direct conversations with Trump leading up to January 6, 2021, when Trump pressured him unsuccessfully to block the 2020 election's result and may have been acting corruptly, according to sources who have explained the judge's ruling.
A date for Pence's grand jury appearance is not yet known.
A former vice president has never before complied with a criminal probe subpoena to testify about the actions of a then-president, putting Pence in a position to define the powers of his former office.
Pence's apparent decision to provide information to special counsel Jack Smith comes as he is exploring a possible challenge to Trump for the Republican presidential nomination in 2024.
Smith has pursued interactions several top Trump administration advisers had with the then-president, but locking in Pence's testimony would provide one of the most crucial first-hand accounts for investigators, given Trump's heated one-on-one phone calls with Pence before the riot and how Trump's supporters threatened the vice president during the attack of the Capitol.
In the recent ruling, Chief Judge James Boasberg of the US District Court in Washington, DC, decided Pence must testify about conversations he had with Trump ahead of the US Capitol riot.
The judge said the former vice president can still decline to answer questions related to his actions on January 6 itself, when he was serving as president of the Senate for the certification of the 2020 presidential election, according to one of the sources.
For Pence and his team, receiving that carveout from the court was critical. They argued to the court that the Constitution's Speech or Debate Clause, which shields lawmakers from certain law enforcement actions connected to their legislative duties, prevents him from being forced to answer questions about some of the conduct that investigators are looking at.
"Vice President Mike Pence swore an oath to support and defend the Constitution, and his claim that the Biden Special Counsel's unprecedented subpoena was unconstitutional under the Speech or Debate Clause was an important one made to preserve the Separation of Powers outlined by our Founders," Pence spokesman Devin O'Malley said in a statement Wednesday.
"Having vindicated that principle of the Constitution, Vice President Pence will not appeal the Judge's ruling and will comply with the subpoena as required by law," O'Malley said.
"For me, the reason to challenge a subpoena of a vice president in their role as president of the Senate was an important constitutional argument to have," Pence told reporters in late March. "And now, for the first time ever, a federal court has recognized that these protections extend to a vice president."
The forthcoming testimony will likely elicit a strong reaction from Trump, who attempted to block Pence from appearing before the grand jury by asserting executive privilege over the former vice president's testimony.
Trump's legal team could still appeal a recent, sealed ruling from the district court rejecting his attempts to stop Pence from testifying about their conversations, on the basis of an executive privilege claim. There is no public indication that the Trump team has appealed that ruling.
The former president has lost every executive privilege challenge he has tried to make in the investigation thus far.
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