Former Vice President Mike Pence is planning to fight a federal grand jury subpoena compelling him to testify in the investigation into President Donald J. Trump’s actions leading up to the riot at the Capitol on Jan. 6, 2021, according to a person familiar with Mr. Pence’s plans.
Mr. Pence is expected to argue that the vice president’s role as the president of the Senate means that he is protected from legal scrutiny of his official duties by the Constitution’s “speech or debate” clause, intended to protect the separation of powers.
Such an approach would be novel and a departure from the more traditional argument that a vice president’s interactions with a president would be subject to executive privilege.
The “speech or debate” clause shields members of Congress from law enforcement scrutiny over their statements and actions related to their legislative responsibilities. It specifically states that lawmakers “shall not be questioned in any other place” about their legislative duties.
It is not clear whether or how the Justice Department might argue against Mr. Pence’s effort to invoke the clause in this case.
A spokeswoman for Mr. Pence declined to comment, as did the Justice Department.
Mr. Pence’s aides had signaled when news of the subpoena became public last week that they were likely to fight it on constitutional grounds as well as possible issues related to executive privilege.
Pursuing an argument based on the vice president’s role in the legislative branch would be a shift from Mr. Pence’s explanation for why he would not voluntarily testify before the House select committee investigating Jan. 6. Mr. Pence was never subpoenaed by the committee. But he had said it would set a bad precedent for a vice president to testify about internal White House discussions.
In the case of the grand jury subpoena, Mr. Pence is expected to argue that he was serving during the election certification process as a member of the legislative branch through his role as president of the Senate, bringing the “speech or debate” clause into play.
The subpoena is part of a series of steps taken in recent weeks by Jack Smith, the special counsel overseeing the Justice Department investigations into Mr. Trump. Mr. Smith, who is in charge of both the Jan. 6 inquiry and a parallel investigation into Mr. Trump’s handling of classified documents, has stepped up the pace of activity on both fronts, seeking to make good on the goal of making decisions before the 2024 presidential race gets underway.
Mr. Pence is a potential rival to Mr. Trump for the Republican nomination. So far, only Mr. Trump and Nikki Haley, the former South Carolina governor and U.N. ambassador under Mr. Trump, are declared major candidates. President Biden, who is widely expected to seek re-election, is also under scrutiny from a special counsel after he was found to have had a small number of documents with classified markings at an office and his home.
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