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.
Luttig testified before the House January 6 select committee, which was disbanded with the new Congress this year. Luttig has deep roots in the conservative legal movement. He clerked for the late Justice Antonin Scalia when Scalia was on the powerful DC federal appeals court. Luttig counts among his former clerks Republican Sen. Ted Cruz and FBI Director Chris Wray, as well as John Eastman, the attorney who spearheaded the plan to disrupt Congress certification of the 2020 results.
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.”