CBS News reports, Special counsel asks judge to compel Mike Pence to testify in Jan. 6 probe:
Federal prosecutors have asked the chief judge in Washington, D.C.’s federal court to compel former Vice President Mike Pence to comply with a grand jury subpoena and testify as a witness in special counsel Jack Smith’s investigation into the events surrounding the Jan. 6, 2021 attack on the Capitol, three people familiar with the investigation told CBS News.
The motion to compel Pence’s testimony — filed in secret to Chief Judge Beryl Howell in recent days — came after lawyers for former President Donald Trump asserted executive privilege in response to Pence’s subpoena, the people said.
That assertion of executive privilege on Pence’s subpoena, the people added, is in line with how Trump’s team has responded to related subpoenas over the past year, with Trump’s attorneys often arguing that private conversations or interactions with a president should remain confidential.
Note: Trump’s loser lawyers have lost on executive privilege every time because of the crime-fraud exception to privilege.
The latest filing also comes after Pence has signaled he would oppose a subpoena from Smith’s office.
Pence and his lawyers have also been preparing to invoke the Constitution’s Speech or Debate clause as a means of protecting him from the investigation. That clause protects members of Congress from being questioned about their legislative actions by other branches of the federal government.
Pence contends his unique role as both a member of the executive branch and president of the Senate — who presided over Congress’ certification of Electoral College votes on Jan. 6, 2021 — would be covered under the clause.
“On the day of Jan. 6, I was acting as president of the Senate, presiding over a joint session described in the Constitution itself. So, I believe that that Speech and Debate clause of the Constitution actually prohibits the executive branch from compelling me to appear in a court, as the Constitution says, or in any other place,” Pence — who is considering whether he will run for president in 2024 — told reporters in Iowa last week.
“We’ll stand on that principle and we’ll take that case as far as it needs to go, if it needs be to the Supreme Court of the United States,” he added.
This bullshit is refuted by legal experts in my earlier post.
The motion to compel testimony filed by the special counsel’s office is the logical next step in a criminal probe, with prosecutors seeking to force a witness or third party to comply with a grand jury subpoena. Filed less than two weeks after news broke that Pence had received the subpoena, the legal document asks the court to uphold the subpoena’s legal authority and indicates Justice Department prosecutors are moving quickly in their attempt to get Pence before a grand jury.
People familiar with the probe told CBS News in November that the Justice Department had reached out to Pence in connection to Trump’s alleged efforts to overturn the 2020 election and the events of Jan. 6, 2021.
Pence’s legal team, Trump’s lawyers and federal prosecutors will now likely work behind closed doors and under seal to convince the federal judge that their interpretation of the law is the right one.
Two people familiar with the investigation say the chief judge has also made a common move during a grand-jury investigation, issuing a court instruction for secrecy, or “gag order,” in recent days. That means all those involved with the probe in any capacity cannot comment on it.
The moves by the special counsel come as Howell’s term as chief judge presiding over all sealed grand juries in Washington, D.C.’s federal court is set to expire on March 17, and a new judge will take over.
Judge Howell should grant the special prosecutor’s motion to compel, and then it is up to the sanctimonious Mike Pence to do his civic and patriotic duty, and do as any other citizen is expected to do – testify to the criminal grand jury – or to continue to engage n obstruction of justice by filing a meritless appeal to avoid testifying and delaying justice.
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CNN reports, “Conservative former judge J. Michael Luttig blasts Mike Pence plan to defy subpoena”, https://www.cnn.com/2023/02/24/politics/mike-pence-j-michael-luttig/index.html
In a stern rebuke of former Vice President Mike Pence, the conservative former judge who advised Pence on how to handle the January 6, 2021, election certification vote is now warning of both the legal and political consequences of Pence’s plan to fight the grand jury subpoena by special counsel Jack Smith.
“We can expect the federal courts to make short shrift of this ‘Hail Mary’ claim and Mr. Pence doesn’t have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury,” former Judge J. Michael Luttig says in an op-ed published in The New York Times on Friday.
Luttig calls Pence’s vow to resist the subpoena a “dangerous gambit” and one that will invite an “embarrassing spectacle.”
“No prosecutor, least of all Mr. Smith, will abide this political gambit for long,” Luttig says.
The op-ed was published the day after CNN and others reported that federal prosecutors are asking a judge to compel Pence to testify in Smith’s probe.
In recent public comments, Pence has said he will fight the subpoena on the grounds that, under the Constitution’s Speech or Debate Clause, the executive branch cannot compel his testimony before a grand jury.
The clause shields lawmakers from certain law enforcement actions that target their legislative conduct. Pence and his team have argued that they believe the former vice president is also covered under it in the role he was serving, during Congress’ January 6, 2021, certification vote, as president of the Senate.
Luttig predicts in the op-ed that Pence’s arguments will fail, writing that even if the courts find that Pence is entitled to some protections under the constitutional provision, they will “unquestionably hold that Mr. Pence is nonetheless required to testify in response to Mr. Smith’s subpoena.”
Luttig also says that Pence and his lawyers are “mistaken” if they think that litigation will tie up the courts for “months and months.”
“What Mr. Smith wants to know about are Mr. Pence’s communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States,” Luttig writes.
Luttig’s public condemnation of Pence’s claims is notable, given the counsel he gave Pence and his team that the former vice president did not have the authority to disrupt the congressional certification vote – counsel Pence ultimately followed. Luttig has previously praised Pence for withstanding former President Donald Trump’s pressure to halt the certification of President Joe Biden’s win.
In his op-ed, Luttig defends Smith’s investigation and disputes Pence’s accusation that the subpoena for his testimony is politically motivated.
“Injecting campaign-style politics into the criminal investigatory process with his rhetorical characterization of Mr. Smith’s subpoena as a ‘Biden D.O.J. subpoena,’ Mr. Pence is trying to score points with voters who want to see President Biden unseated in 2024. Well enough. That’s what politicians do,” Luttig writes. “But Jack Smith’s subpoena was neither politically motivated nor designed to strengthen President Biden’s political hand in 2024. Thus the jarring dissonance between the subpoena and Mr. Pence’s characterization of it. It is Mr. Pence who has chosen to politicize the subpoena, not the D.O.J.”
The former judge goes on to say that Pence’s plan to fight the subpoena risks a political backlash.
Pointing to Pence’s promise to take the subpoena battle to the Supreme Court, Luttig writes: “A politician should be careful what he wishes for – no more so than when he’s a possible presidential candidate who would have the Supreme Court decide a constitutional case that could undermine his viability in an upcoming campaign.”
Should the “speech and debate” clause of the Constitution be the undoing of American constitutional government, and shield those insurrectionists who sought to end American democracy? One of the key Coup Plotter co-conspirators thinks so.
NBC News reports, “Rep. Scott Perry argues in court against phone search in special counsel’s Jan. 6 probe”, https://www.nbcnews.com/politics/politics-news/rep-scott-perry-argue-phone-search-special-counsels-jan-6-probe-rcna71938
A lawyer for Rep. Scott Perry, R-Pa., argued before a federal appeals court Thursday against the Justice Department’s bid to access the contents of his phone.
The FBI seized Perry’s phone last year as part of the department’s Jan. 6 investigation. Perry, an ally of former President Donald Trump who supported his efforts to overturn the 2020 presidential election results, sued the DOJ last year requesting the return of all cellphone data the FBI had seized. Perry’s lawyers dropped the case in October without providing an explanation.
Perry has argued that the government does not have the authority to search the data because his phone contained sensitive information protected by the speech or debate clause of the Constitution, which grants lawmakers legal protections for legislative acts.
A panel of three judges on the U.S. D.C. Circuit Court of Appeals pressed Perry’s lawyer, John Rowley, about what scenarios the protections of the speech or debate clause apply to.
Rowley repeatedly argued that “speech within the legitimate legislative sphere” is protected under the clause.
“There’s no reason, your honor, that privilege applies to a congressman’s office but not his cell phone” given that members “can use their cell phones to communicate on legislative manners,” Rowley said.
Rowley pointed to members of Congress who were encouraged to vote by proxy during the Covid-19 pandemic.
“And so for that reason, your honor, perhaps some time ago it made sense to limit the protections of the privilege to congressmen’s workspace, in his present office. I would submit to the court that that is no longer the case, given the realities of technology,” he said.
Asked about whether the same protections apply to lawmakers’ communications with people outside of Congress, Rowley said he believes the principles are similar, provided that the communication is “conducted within the sphere of legitimate legislative activity” and that members conduct informal “fact finding” often.
The Justice Department argued that Perry’s communications should not be protected under the speech or debate clause because they weren’t tied to any real legislative purpose.
[True – plotting a coup d’état to overthrow the will of the voters in the 2020 election and to install Donald Trump as America’s first dictator is NOT any legitimate legislative purpose. It is a high crime against the Republic and the American people.]
John Pellettieri, a lawyer for the DOJ, argued that informal fact-gathering by any one representative, who is not acting with the authorization of a congressional committee or subcommittee, is not subject to the clause and therefore not protected by it.
Pellettieri said protections under the speech and debate clause can go beyond the specific text of the Constitution only “when necessary to effectuate the purposes of the clause” and when “the conduct is integral to a legislative activity.”
“But I would say insofar as this notion of a non-disclosure privilege doesn’t serve the very purposes of applying it to public acts, doesn’t serve the purposes it’s intended to serve, it should not be extended any further,” Pellettieri said.
Politico reports, “Judge rejected Perry’s bid to shield thousands of emails from Jan. 6 investigators”, https://www.politico.com/news/2023/02/24/judge-rejected-scott-perrys-bid-to-shield-2-000-emails-from-jan-6-investigators-unsealed-filings-show-00084442
The chief judge of the federal district court in Washington, D.C., secretly rejected Rep. Scott Perry’s bid to shield more than 2,000 messages relevant to Justice Department investigators probing efforts by Donald Trump to subvert the 2020 election, according to newly unsealed court filings.
U.S. District Court Chief Judge Beryl Howell unsealed her extraordinary Dec. 28 decision on Friday evening, determining that the “powerful public interest” in seeing the previously secret opinion outweighed the need for continued secrecy.
Decision: https://www.documentcloud.org/documents/23690335-perryopn122822a-combined
Howell said Perry had taken an “astonishing view” of his immunity that would effectively put members of Congress above the law and free of political consequences for their actions. She ordered him to disclose 2,055 of the documents he sought to withhold — including all 960 of his contacts with members of the executive branch, which she said are entitled to no constitutional protection at all. Some 161 items, she said, were proper to withhold.
“What is plain is the clause does not shield Rep. Perry’s random musings with private individuals touting an expertise in cybersecurity or political discussions with attorneys from a presidential campaign, or with state legislators concerning hearings before them about possible local election fraud or actions they could take to challenge election results in Pennsylvania,” Howell wrote in her 51-page December opinion.
[T]hus far, however, investigators have not had access to any of the records because, last month, a three-judge panel of the D.C. Circuit Court of Appeals agreed to stay Howell’s ruling. On Thursday, those judges heard both public and private arguments about the dispute. The stay remains in place as the appeals court considers whether to leave Howell’s ruling in place, set it aside or modify it in some way.
The judges — Karen Henderson, Gregory Katsas and Neomi Rao — appeared skeptical of the Justice Department’s position and the breadth of Howell’s ruling, although they discussed her stance only in broad strokes and the details of her opinions remained under seal until Friday.
But the appeals panel’s ultimate leanings remained unclear at the conclusion of the public argument session Thursday. The appeals judges seemed most concerned by Howell’s determination that Perry’s outreach about Jan. 6 was not protected by the speech or debate clause because he was not acting with formal House approval.
That determination was a centerpiece of Howell’s ruling, which she said was rooted in longstanding precedent.
[T]he dispute over access to Perry’s cell phone has drawn the House itself into the fray. Lawyers for Speaker Kevin McCarthy — authorized by a bipartisan vote of House leaders — weighed in earlier this month with a 6,000-word brief that remains sealed. Howell noted in her unsealed filings Friday that the chamber weighed in “at Perry’s request.”
Howell also dinged Perry for what she described in another unsealed filing — this one in November— for appearing to “slow-walk” his review of the items on some 10,000 documents contained on the phone FBI agents seized. She ordered him to pick up the pace of his review from about 250 documents per day to 800.
The three-judge appeals court panel decision on Perry’s bid for speech-or-debate protection for his communications may not be the final word. Either the Justice Department or Perry could ask the full bench of the D.C. Circuit to take up the issue or seek to get the Supreme Court to intervene.