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Lawyers for former Vice President Mike Pence and the Justice Department should think twice before appealing Chief Justice Jeb Bosburg’s decision to reject arguments for Pence to drop testimony before the panel. Grand Juror on January 6th
Trump’s legal team argued that executive privilege protected Pence from complying with a grand jury’s summons to testify about what he knew about the former president’s efforts. Donald Trump, in overturning the 2020 election, Pence’s legal team argued that a speech or debate in the U.S. Constitution may cause him to not follow in the same way
In a pair of rulings still under seal, Boasberg, who took the reins of the D.C. federal district court nearly two weeks ago, said: Rejects Trump’s argument and largely rejects Pence’s argument. Trump’s denial by a now-reflexive claim of executive privilege comes after Boasberg’s predecessor Judge Beryl Howell, who rejected Trump’s attempts to stop Mark’s testimony. Meadows, his former chief of staff and other Trump advisers
Despite the long-standing losses of this argument, and despite the fact that the Supreme Court stated in the Watergate case in the era of United States vs. Nixon Executive privileges had to surrender in the face of a pending criminal case. Trump and his allies continue to cede such rights as a decisive shield of evidence. Trump was unlikely to succeed in appealing the issue other than adding to his losses. Ironically, Nixon himself worried that he might weaken executive privilege through his request. already Trump’s reckless concept of privilege may have done more damage to the doctrine than Nixon.
Pence’s separate argument that a constitutional speech or debate clause can defeat a summons to a grand jury is equally unrecommended, and makes it clear that Pence values play. for Trump’s constituency rather than his emphasis on the rule of law.
Pence’s reasoning was that his role as head of the Jan. 6 election counting unit made him a member of the legislative branch instead of the executive branch for one day. So he was protected from the investigation of his actions. But speeches or debates are not as broad as Pence’s readings as the Supreme Court had. USA v. Brewster 408 US 501 (1972), in which SCOTUS distinguishes between political activities and legal activities.
The latest reminder of the difference comes as the 11th Circuit Court of Appeals unanimously rejected Sen. Lindsay Graham’s attempt to circumvent the Fulton County Special Grand Jury’s subpoena. through speech or debate
Even Michael Luttig, a conservative former federal judge, The president, who had supported Pence and advised him on how to handle the Jan. 6 ballot guarantees, also criticized Pence’s attempt to hide behind the sentence as an attempt to “save the ballot.” “Political Issues” of Subpoenas
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However, according to the report, Chief Justice Boasberg’s decision gave Pence some wiggle room. While deciding that Pence must obey a subpoena and answer questions asked by Jack’s team of special counsel. Smith stood before the jury. The judge allowed Pence to refuse to answer questions that might relate to his actions on Jan. 6, when he became president. of the Senate to endorse the 2020 presidential election
The trial denied prosecutors the green light to question Pence about every aspect of Jan. 6 and forced them to proceed question-by-question. Because the real purpose of a speech or debate sentence is immunity from legal liability. It makes sense that Pence could not be questioned about his specific actions in counting electoral votes as part of the certification process.
But under Bosburg’s ruling The immunities would not apply to being questioned about what he knew about Trump’s potentially illegal attempt to overturn the election. It would be tempting for both the Justice Department and Pence to seek a broader victory by appealing the potential issue all the way to the Supreme Court.
But an appeal is a double-edged sword. In this case, the appeal could open the door to Pence’s testimony—or shut it abruptly. Pence, who has shown himself more willing to abandon political principles Trump may emulate Trump by appealing the issue as much as he can if only showing willingness to fight the Special Counsel’s investigation in the hopes of appealing to Trump’s constituency. Pence was easily questioned broadly. making it impossible to refuse to answer some questions Similarly, the DOJ and the special counsel may choose to have no restrictions on what they can ask Pence. And it may be hoped that a winning appeal may refute Pence’s weak legal arguments. and left them to interrogate him alone.
Here, however, the DOJ has more to offer than Pence. Even the limited ability to question Pence is a huge win for prosecutors. Because it allows them to get what they can and fight about the rest of the day. The risk that a conservative appeals court might take a position in favor of Pence is not significant. And choosing not to appeal the current decision could signal to the higher courts that the DOJ’s position relative to Pence’s position. It is a more reasonable position according to the constitution.
That’s a subtle distinction not to be missed with Merrick Garland, a former federal appeals court judge.
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