The figures pressuring Mike Pence to reject Joe Biden’s electoral votes on Jan. 6 were asking him to act “unlawfully,” the chief judge of Washington D.C.’s federal district court ruled in a secret April decision.
U.S. District Court Judge James Boasberg’s 19-page opinion — which the judge partially unsealed Friday at the urging of media organizations — cleared the way for special counsel Jack Smith’s prosecutors to question the former vice president about his conversations with a wide array of figures who leaned on him to reject Biden’s electors, possibly including Donald Trump.
“The bottom line is that conversations exhorting Pence to reject electors on January 6th are not protected,” Boasberg wrote in the ruling, dated March 27, adding, “There is no dispute in this case that Pence lacked the authority to reject certified electoral votes.”
Pence appeared for that closed-door testimony on April 27 and answered questions for more than six hours. The substance of the questions and answers remain almost entirely shielded from public view but nevertheless marked a historic moment in Smith’s unprecedented criminal probe of Trump and his allies’ efforts to subvert the 2020 election.
Boasberg’s newly unsealed ruling reveals that he required Pence to answer nearly every category of questions prosecutors intended to pose, including about the pressure by those who asked him to simply throw out or refuse to count Biden’s electors.
Both Trump and Pence had fought to sharply restrict questions that Smith’s team could pose to the former vice president. Trump claimed his conversations with Pence were shielded by executive privilege — an argument Boasberg squarely rejected. Pence, however, took a different tack, arguing that he should be afforded the same immunity from DOJ questioning that members of Congress receive.
That immunity, afforded by the Constitution's “speech or debate clause” is meant to shield lawmakers and congressional officials from compelled testimony to the Executive Branch. Pence emphasized that on Jan. 6, 2021, he was fulfilling his constitutional role as “president of the Senate,” presiding over both houses of Congress to count electoral votes. That role entitles him to congressional immunity, he contended.
Boasberg agreed with Pence — and his ruling is a first-of-its-kind finding that vice presidents should be treated as hybrid members of the Executive and Legislative, deriving protections from both, depending on the context. But he also noted that the ”speech or debate” clause has strict limits, and doesn’t protect efforts by outside actors to coax legislators to act “unlawfully.”
In his ruling, Boasberg said Pence was required to answer questions on virtually all topics proposed by Smith’s team with the exception of inquiries about his preparation and planning to perform the actual task of counting electors.
In the final frenzied weeks before Jan. 6, Trump leaned on Pence to single-handedly disrupt the transfer of power by refusing to count Joe Biden’s electors on Jan. 6, when Pence was tasked with presiding over Congress to count electoral votes and finalize the results. Trump called Pence on the morning of Jan. 6 and berated him for refusing to acquiesce, urging him to reconsider just minutes before Pence traveled to the Capitol.
Pence’s refusal shattered Trump’s last-ditch bid to cling to power and became fuel for an angry mob of Trump supporters that subsequently ransacked the Capitol that day.
Despite Smith’s clear win, Boasberg at times took the Justice Department to task for making sweeping arguments about the limits of the speech or debate clause, which he said were far too narrow.
In a redacted brief that Boasberg unsealed on Friday as well, DOJ attorney James Pearce argued that Pence shouldn’t enjoy protections from the speech or debate clause at all. In fact, Pearce’s position was at odds with one the Justice Department had taken repeatedly in recent years to fend off lawsuits against vice presidents and other congressional officers, a reversal Pearce acknowledged. He attributed the change to what he said was a lack of a thorough analysis in the previous cases.
Pence, in his own newly unsealed brief, argued that the speech or debate clause provided him expansive protections — which Boasberg ruled was far too broad of an interpretation.