Former Judge: Pence ‘Doesn’t Have a Chance’ of Avoiding Grand Jury

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Facts

• J. Michael Luttig, the conservative former judge who advised former Vice President Mike Pence during his handling of the election certification on Jan. 6, 2021, has written an op-ed in The New York Times. The piece admonishes Pence for his attempt to avoid a grand jury subpoena from Jack Smith, the special counsel investigating former Pres. Trump’s post-election activities.¹
• Luttig wrote that Pence “doesn’t have a chance in the world of winning his case” and that the former Vice President's attempt to dodge the grand jury will bring an “embarrassing spectacle” to the nation.¹
• Previously, Pence confirmed his plans to challenge the subpoena following a Minnesota event on parental rights. He said he honored his constitutional duty on Jan. 6, 2021, and that he needs to fight the grand jury subpoena to protect the separation of powers.²
• Pence, who was president of the Senate as part of his Vice Presidential duties, argued he’s protected by the Constitution's Speech or Debate Clause, which shields members of Congress from testifying about legislative acts. This move could start a months-long legal battle.³
• Pence is the latest and the highest-ranking official in Trump's administration to be subpoenaed in the investigation into alleged efforts to overturn the results of the 2020 presidential election.⁴
• Meanwhile, Trump’s lawyers are also reportedly planning to fight the subpoena based on the administration’s executive privilege.⁵

Sources: ¹CNN, ²CBS, ³Wall Street Journal, ⁴FOX News and ⁵New York Post.

Narratives

• Democratic narrative, as provided by Slate. If Pence challenges the subpoena, he’ll fall flat on his face. According to case law, speech-or-debate protections extend only to legislative acts, and Pence unequivocally stated his Senate role was ministerial and largely ceremonial. He’s just trying to stay in Trump’s good graces by appearing to fight the investigation.
• Republican narrative, as provided by The new york sun. There's no doubt that Pence is right to take this path to fight the DOJ's subpoena as the vice president indeed constitutionally belongs to the legislative branch. By dismissing Trump's alleged pressure campaign to overturn the election, Pence made it clear that he was an officer of the Senate in his own right, not an executive official subordinated to the president.
• Pro-Trump narrative, as provided by Breitbart. Smith is a politically-motivated prosecutor who is running an illegitimate investigation and has botched prosecutions in the past — both domestically and overseas. There’s no way anyone, let alone the former vice president, should tell Smith anything.

Predictions