Trump, Pence urge judge to reject special counsel bid to obtain former VP’s testimony

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Attorneys for Donald Trump and Mike Pence were in federal court Thursday to fight efforts by special counsel Jack Smith to subpoena the former vice president as part of the investigation into Trump’s effort to subvert the 2020 election.

Four of Trump’s lawyers — Evan Corcoran, Jim Trusty, John Rowley and Tim Parlatore — joined Pence lawyer Emmet Flood in their efforts to scuttle Smith’s subpoena, which seeks Pence’s testimony about the weeks and months preceding the violent Jan. 6 attack on the Capitol. There, rioters loyal to Trump forced Pence to flee for safety after Pence defied Trump’s demands that he single-handedly stop the transfer of power to Joe Biden.

Trump’s team contends that Smith’s effort to seek details of Pence’s conversations with Trump would violate executive privilege, but Pence’s team is taking a different approach. Flood contends that Pence’s former role as president of the Senate means Pence has congressional immunity from the Justice Department’s probe.

It’s one of the weightiest constitutional fights that Smith is likely to undertake, one that could shape the balance of power between all three branches of government in unpredictable ways. Assistant U.S. Attorney Thomas Windom, one of Smith’s lead investigators, was seen entering the courtroom as well.

It’s also an early test for Chief U.S. District Court Judge James Boasberg, who took the chief’s gavel last week after his predecessor Beryl Howell’s seven-year term as chief expired. The chief judge is tasked with overseeing all grand jury matters in the district, which include Smith’s special counsel probes.

Pence’s fight to block the subpoena is not the only way Smith’s inquiry could have far-reaching constitutional consequences. A three-judge appeals court panel is expected to rule imminently on his separate effort to access the cellphone data of Rep. Scott Perry (R-Pa.), a key ally in Trump’s bid to overturn the 2020 election results. Perry, like Pence, is arguing that his communications should be shielded by the Constitution’s “speech or debate” clause, which grants Congress sweeping immunity from compelled testimony — if it pertains to lawmakers’ official duties.

The Perry dispute drew intervention from the House of Representatives, which filed a sealed amicus brief in the matter that raised concerns about the implications for the institution should the appeals court adopt a narrow view of “speech or debate” immunity.

The hearing also underscored the extraordinary confluence of acute legal and criminal matters Trump is facing.

Corcoran himself has been ordered by a federal judge to testify as soon as Friday in Smith’s other ongoing criminal probe of Trump’s handling of sensitive national security records discovered at his Mar-a-Lago estate. And while Corcoran was waiting in the cafeteria Thursday, an attorney for Joseph Biggs — one of five Proud Boys facing seditious conspiracy charges for actions on Jan. 6 — approached him to attempt to serve a subpoena on Trump.

The attorney, Norm Pattis, said Corcoran told him he was ”not authorized” to accept service on Trump’s behalf.