Judge weighs whether special counsel can compel Pence's testimony, sources say
Washington — A federal judge heard arguments Thursday in a dispute between former Vice President Mike Pence, attorneys for former President Donald Trump and special counsel Jack Smith over whether Pence can be compelled to testify in Smith's probe of the Jan. 6, 2021, attack on the Capitol, three sources tell CBS News.
Smith issued the subpoena for Pence's testimony before a federal grand jury in February, and the former vice president said he would contest it, calling it "unconstitutional" and "unprecedented." Trump's legal team claimed executive privilege over Pence's testimony after CBS News first reported prosecutors filed a motion asking the federal courts to compel the former vice president to testify.
Emmet Flood, Pence's attorney, as well as Trump's legal team — Evan Corcoran, Jim Trusty, Tim Parlatore and John Rowley — were spotted inside the federal courthouse in Washington, D.C., on Thursday ahead of the expected hearing. Legal teams for both Trump and Pence are working to fight the subpoena. Justice Department prosecutor Thomas Windom was also at the federal courthouse.
If Chief Judge James Boasberg sides with the Smith's team, Pence has said he will appeal, and the case could eventually reach the Supreme Court. Thursday's hearing was under seal as is required by grand jury secrecy laws.
Pence has said his objection to the subpoena stems from the Constitution's Speech or Debate Clause and the vice president's role as president of the Senate. "My fight against the DOJ subpoena very simply is on defending the prerogatives that I had as president of the Senate to preside over the joint session of Congress on Jan. 6," he said shortly after it was issued.
Attorney General Merrick Garland appointed Smith as special counsel in November to oversee the Justice Department's criminal investigations into whether any entity "unlawfully interfered" with the certification of the Electoral College on Jan. 6 and the transfer of power after the 2020 election.
Smith is also overseeing the criminal investigation into the alleged mishandling of documents with classified markings and whether the investigation into those documents was obstructed.
Trump's attorney, Corcoran, has been ordered to testify in Smith's classified documents investigation, according to sources familiar with the matter. An appeals court on Wednesday ruled that he must comply with a federal grand jury subpoena to testify and provide information about his communications with Trump about the classified documents. Corcoran is set to testify before the grand jury as early as Friday and provide evidence including notes and transcripts, CBS News has confirmed
Trump has maintained his innocence and denied all wrongdoing.
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Robert Costa is CBS News' chief election and campaign correspondent based in Washington, D.C.
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