Former Vice President Mike Pence said Wednesday that he plans to fight a subpoena from the special counsel investigating Donald Trump's actions surrounding the Jan. 6 riot, calling the demand for his cooperation "unprecedented and unconstitutional."
"No vice president has ever been subject to a subpoena to testify about the president with whom they served," Pence told reporters after he spoke at a parents' rights event in Minnesota.
Pence, who has written a book detailing some of his interactions with the former president leading up to the attack on the U.S. Capitol and given numerous interviews with reporters about the topic, said he was fighting the subpoena to testify before a grand jury on principle.
He also confirmed his unusual legal strategy — maintaining that he's immune from testifying because of legal protections for lawmakers, because he was acting as president of the Senate during the Jan. 6 Electoral College vote count rather than as a member of the executive branch.
"For me, this is a moment where you have to decide where you stand, and I stand on the Constitution of the United States," Pence said.
"On Jan. 6th, President Trump was wrong. As I've said before, his words were reckless, and they endangered my family and everyone at the Capitol," he said.
He added that despite Trump's pleas to the contrary, "I had no right to overturn the election,” adding, “But I would say in this very moment, it’s also wrong to establish a precedent where a legislative official can be called into court by the executive branch."
Pence noted that his argument that he has legislative immunity from his role on Jan. 6 was the same one the Justice Department used in 2021 in its defense of a lawsuit claiming the 2020 election was illegitimate.
The Justice Department succeeded in getting that lawsuit dismissed, but the judge didn't cite the government's position on legislative immunity in tossing the case out.
"We’re prepared to take this fight into the court," Pence said Wednesday, adding that he expects Trump will also challenge the subpoena on executive privilege grounds.
Pence was subpoenaed by special counsel Jack Smith, a source familiar with the matter said last week.
Attorney General Merrick Garland appointed Smith in November to lead the Justice Department’s inquiries into Trump’s role in the riot, as well as his handling of classified documents after he left office. The subpoena of Pence was related to the Jan. 6 investigation, the source said.
A spokesperson for Smith declined to comment on the Justice Department’s having previously used Pence's legislative immunity argument.
At a stop in Iowa later Wednesday, Pence sidestepped a question about whether he would voluntarily sit down with prosecutors. "If we were to proceed to accept a subpoena for appearance before a grand jury or trial, I believe that would diminish the privileges enjoyed by any future vice president, be that Democrat or Republican. I simply will not do that," Pence said.
Despite having made numerous public statements about resisting Trump's calls to reject the votes from numerous states on Jan. 6, Pence has resisted efforts to get him to testify under oath about his experiences.
In August, Pence suggested he was open to speaking to the House committee investigating the riot at the Capitol before he backtracked in an interview with CBS News in November.
"I never stood in the way of senior members of my team cooperating with the committee and testifying, but Congress has no right to my testimony,” Pence said. “I’m closing the door on that."
