Pence appeared for that closed-door testimony on April 27 and answered questions for more than six hours. The substance of the questions and answers remain almost entirely hidden from public view, but they nonetheless marked a historic moment in Smith’s unprecedented criminal investigation into Trump and his allies’ efforts to subvert the 2020 election.
Boasberg’s recently unveiled ruling reveals that he required Pence to answer nearly every category of question prosecutors intended to ask, including pressure from those who asked him to simply push back or refuse to count Biden voters.
Both Trump and Pence had fought to sharply limit the questions Smith’s team could ask the former vice president. Trump said his conversations with Pence were protected by executive privilege, an argument Boasberg flatly rejected. Pence, however, took a different position, arguing that he should be granted the same immunity from Justice Department questions that members of Congress receive.
That immunity, granted by the Constitution’s « speech or debate clause, » is intended to protect lawmakers and congressional officials from coerced testimony to the executive branch. Pence stressed that on Jan. 6, 2021, he was fulfilling his constitutional role as « President of the Senate, » presiding over both houses of Congress to count electoral votes. That role entitles him to congressional immunity, he argued.
Boasberg agreed with Pence, and his ruling is a first-of-its-kind finding that vice presidents should be treated as hybrid members of the executive and legislative, drawing protection from either, depending on the context. But he also noted that the « speech or debate » clause has strict limits and does not protect the efforts of outside actors to persuade lawmakers to act « illegally. »
In his ruling, Boasberg said Pence was required to answer questions on virtually every subject proposed by Smith’s team, with the exception of questions about his preparation and planning for doing the actual job of counting voters.
In the last hectic weeks before Jan. 6, Trump leaned on Pence to single-handedly disrupt the transfer of power by refusing to count Joe Biden’s voters on Jan. 6, when Pence was tasked to preside over Congress to count electoral votes and finalize the results. Trump called Pence on the morning of Jan. 6 and chastised him for refusing to consent, urging him to reconsider minutes before Pence was due to go to the Capitol.
Pence’s refusal shattered Trump’s last-ditch effort to hang on to power and became fuel for an angry mob of Trump supporters who subsequently ransacked the Capitol that day.
Despite Smith’s clear victory, Boasberg sometimes chided the Justice Department for making broad arguments about the limits of the speech or debate clause, which he felt were too narrow.
In a short edited which Boasberg also opened on Friday, Justice Department attorney James Pearce argued that Pence shouldn’t enjoy any protection from the talk or debate clause. In fact, Pearce’s position was at odds with one the Justice Department had taken repeatedly in recent years to fend off lawsuits against vice presidents and other congressional officials, a reversal Pearce acknowledged. He attributed the change to what he said was a lack of thorough analysis in previous cases.
Pence, in his short just opened, he argued that the talk or debate clause gave him broad protections – which Boasberg ruled was too broad an interpretation.
