Expert: Trump fighting Pence testimony because he may have “revealed his criminal state of mind”

Former President Donald Trump is appealing a ruling that would require former Vice President Mike Pence to appear before a federal grand jury investigating Trump’s efforts to overturn the results of the 2020 election, according to Bloomberg.

Trump’s appeal, filed Monday in the U.S. Circuit Court of Appeals for Washington, D.C., challenges the bid by special counsel Jack Smith to compel Pence’s testimony earlier this year, asserting executive privilege in an effort to protect his conversations with the former vice president.

US District Court Chief Judge James Boasberg had separately ruled on a claim Pence raised invoking legislative privilege against the subpoena for his testimony. However, his team announced last week that he wouldn’t appeal that decision. 

“Vice President Mike Pence swore an oath to support and defend the Constitution, and his claim that the Biden special counsel’s unprecedented subpoena was unconstitutional under the speech or debate clause was an important one made to preserve the separation of powers outlined by our founders,” Pence adviser Devin O’Malley told NBC News in a statement last week.

Under the Constitution, Pence’s role as vice president also made him the president of the Senate, entitling him to some measure of congressional immunity, Boasberg found. 

Boasberg did put some limits on Smith’s inquiry and affirmed that the Constitution’s “speech or debate” clause offers some protections for Pence from providing testimony.

“Pence’s testimony could be highly significant because of his close proximity to Trump and [his] ongoing campaign to pressure Pence to overturn the 2020 election results,” former federal prosecutor Kevin O’Brien told Salon. “Trump may have explained to Pence his illegal plans and revealed his criminal state of mind.”

Unlike others who are close to Trump, he added, Pence “is probably inclined to tell the truth about these conversations,” making his testimony even more valuable. 

The former vice president has always been viewed as potentially a key witness in the election inquiry into Trump because of the conversations he took part in at the White House in the weeks prior to the attack on the Capitol on Jan. 6, 2021. 

His role in the vote-counting process made him a target of Trump’s campaign to reverse the election results, according to the House Jan. 6 committee.

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“I think Trump is merely seeking to delay the inevitable,” former U.S. Attorney Barb McQuade, a law professor at the University of Michigan, told Salon.

“[The] US Supreme Court has held that executive privilege is only a qualified privilege and must yield in the face of a stronger national interest, such as a grand jury investigation,” McQuade said.

She added that if Trump can get elected president again, before the cases against him are complete, he would have “the power to shut them down, as improper as that might be.”

The judge’s ruling isn’t public because it relates to sealed grand jury proceedings, but an advisor to Pence said last week that their legal claim “prevailed” as Boasberg’s ruling “affirmed for the first time in history that the Speech or Debate Clause extends to the Vice President of the United States.”

Last week, a New York grand jury indicted Trump, making him the first former U.S. president to be criminally charged. He pleaded not guilty to 34 felony counts of falsifying business records in relation to alleged hush money payments made during the final stages of his 2016 presidential campaign.