Can't block Pence testimony

Appeals court denies Trump bid to block Pence testimony to Jan. 6 grand jury

The former president was seeking an emergency order.

By KYLE CHENEY

A federal appeals court has rejected former President Donald Trump’s emergency bid to block his former vice president, Mike Pence, from testifying.

A three-judge panel of the D.C. Circuit Court of Appeals issued an order late Wednesday denying the former president’s last-ditch effort to prevent or limit Pence’s testimony. Though the order remains sealed to protect grand jury secrecy, POLITICO had previously confirmed Trump’s effort, which followed a district court judge’s order that required Pence to testify.

Aides to the former vice president did not comment on the decision but had previously indicated Pence would follow the orders of the court. It’s unclear if Trump — who did not immediately respond to a request for comment — intends to appeal the decision to the Supreme Court or the full bench of the D.C. Circuit.

The ruling is a victory for Jack Smith, the special counsel probing Trump’s bid to subvert the 2020 election. 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 so-called “speech or debate” clause, which protects Congress from Executive Branch intrusion.

Chief U.S. District Court Judge James Boasberg rejected Trump’s argument but agreed with Pence that the congressional immunity applied on certain topics — a historic decision that for the first time found 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 the decision.

Trump earlier this month sought an emergency order from the court of appeals 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, but Trump’s previous emergency appeals — which have nearly all failed when it comes to similar sealed orders — have occurred just days before witnesses were scheduled to appear.