(Photo by Anna Moneymaker/Getty Images)
On Wednesday evening at 8:25, a three-judge panel from the US Court of Appeals for the DC Circuit rejected Donald Trump’s emergency petition to block Mike Pence testifying about the Capitol Riot. And on Thursday morning, bright and early, the former vice president showed up at the E. Barrett Prettyman federal courthouse to spend several hours in the company of the grand jury investigating the events leading up to January 6, 2021.
Let no one accuse Special Counsel Jack Smith of dragging his feet!
In February, the special counsel subpoenaed Pence, who resisted compliance under the Speech or Debate Clause. He argued that, in his role as president of the senate, he functioned as a sort of government chimera, enjoying both executive and legislative privileges. Trump also sought to stop the testimony on executive privilege grounds.
In a March 28 order by Chief Judge James Boasberg, who took over for Judge Beryl Howell as chief of the DC District Court, gave him a partial victory. Pence was ordered to testify about anything he did or saw as vice president, including any conversations with Trump which might have been criminal in nature. But he could refuse to testify about about what he did in his role as senate president.
Presumably means the parts where he was hiding in the basement from the mob sent by Trump as they rampaged the building screaming to “Hang Mike Pence” are off limits. Although Pence’s aides Marc Short and Greg Jacob have likely already told the jurors about that part, since the courts overruled their executive privilege claims and ordered them to spill the beans. And indeed Trump’s own claims of executive privilege have fared no better, getting uniformly side eyed by the federal judiciary throughout this process.
Just as Judge Beryl Howell did before when the president sought to prevent his aides Mark Meadows, Dan Scavino, and Johny McEntee from telling the grand jury what they saw, Judge Boasberg refused to countenance any of Trump’s privilege arguments regarding the vice president.
As is his wont, Trump’s lawyers took their time moseying over to the Circuit Court, waiting twelve days to file an appeal of Judge Boasberg’s order. And Judges Millet, Wilkins, and Katsas considered the matter for slightly longer than Judges Pillard, Pan, and Childs, who took less than 24 hours to dropkick Trump’s plea to block his lawyer Evan Corcoran testifying to the documents grand jury. But the result was much the same, with even Judge Katsas apparently concurring in the sealed per curiam opinion.
Perhaps if he’d been quicker out of the gate, there would have been time to file a request for stay with the Supreme Court. Or maybe Trump wouldn’t have bothered even if he’d had another week. In the event, his attorneys did not appeal the order before Pence’s motorcade pulled up at the courthouse, and now the issue is apparently moot.
Trump loses appeal to block Pence from testifying about direct communications [CNN]
In re Sealed Case [Appellate docket, via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
