Former president Donald Trump could still appeal the part of the judge’s ruling that rejected his separate challenge to Pence’s testimony on executive privilege grounds, potentially delaying a date for Pence’s appearance at court.
In a statement on Wednesday, O’Malley wrote that Pence would no longer fight the subpoena for his testimony, expressing satisfaction with the judge’s handling of the novel legislative privilege theory that Pence had pressed. The decision was reported earlier by the New York Times.
“The court’s landmark and historic ruling affirmed for the first time in history that the Speech or Debate Clause extends to the Vice-President of the United States,” O’Malley wrote. “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.”
Pence had challenged the subpoena from Special Counsel Jack Smith’s office, arguing that because of the unique role the vice president plays in presiding over the Senate, he should be covered by a legal privilege in the Constitution that protects members of the legislative branch against being forced to testify about their official activities.
A federal judge in Washington handed down a ruling late last month that directed Pence to testify, but carved out certain subjects that he could decline to testify about related to his role presiding over Congress’ certification of the 2020 election results on Jan. 6, 2021.
The order from Chief Judge James Boasberg is sealed, but Pence discussed it in an interview with Newsmax last month. He said at the time that he was “pleased that the court accepted our argument”, but demurred when asked if he would appeal. He said that his team was reviewing the precise contours of what the judge concluded he still had to answer questions about.
“I have nothing to hide,” Pence said in the Newsmax interview. “I have a Constitution to uphold. I upheld the Constitution on Jan. 6, I believe we did our duty that day under the Constitution of the United States. And in this matter, I thought it was important that we stand on that constitutional principle again.”
Pence said in that interview it was up to Trump’s camp to decide if they would appeal over the judge’s order on the executive privilege issue.
Spokespeople for Trump and for Smith didn’t immediately return requests for comment.
A coalition of media outlets have petitioned Boasberg to unseal documents related to the fight over Pence’s testimony, arguing that Pence’s repeated public comments about the proceedings should pierce the normal grand jury secrecy rules. (Bloomberg News is a member of the coalition.) The government is due to file a response later this month.
Trump has lost a string of privilege fights with Smith’s office over grand jury subpoenas in the Jan. 6 investigation and a separate probe related to the handling of classified documents after Trump left the White House. In recent weeks prosecutors have successfully defended subpoenas to Trump lawyer Evan Corcoran and former White House advisers, Bloomberg has reported.