Judge rejects Trump's privilege claims over Pence testimony in Jan. 6 probe

A federal judge has rejected Trump's assertion of executive privilege.

March 28, 2023, 2:13 PM

The top federal judge for the D.C. district court has issued a swift rejection of former President Donald Trump's assertion of executive privilege to prevent former Vice President Mike Pence from testifying before a grand jury investigating efforts to overturn the 2020 election, sources familiar with the matter told ABC News.

At the same time, the judge issued a ruling that narrowly upheld parts of a separate legal challenge brought by Pence's attorneys, who have argued Pence should be exempt from providing records or answering certain questions that align with his duties as president of the Senate overseeing the formal certification of the election on Jan. 6, 2021.

According to sources, D.C. Chief Judge James Boasberg ordered that Pence should have to provide answers to special counsel Jack Smith on any questions that implicate any illegal acts on Trump's part.

Pence's team had argued that such communications could run afoul of the Speech and Debate Clause that shields officials in Congress from legal proceedings specifically related to their work.

"The DOJ is continuously stepping far outside the standard norms in attempting to destroy the long accepted, long held, Constitutionally based standards of attorney-client privilege and executive privilege," a Trump spokesperson said in a statement to ABC News.

"There is no factual or legal basis or substance to any case against President Trump," the statement said. "The deranged Democrats and their comrades in the mainstream media are corrupting the legal process and weaponizing the justice system in order to manipulate and influence an election in which President Trump is dominating all across the board."

The special counsel's office declined to comment to ABC News. A spokesperson for Pence did not immediately respond.

Boasberg's rulings came just four days after his and Pence's lawyers appeared at the district court to argue their challenge to the subpoena from the special counsel.

PHOTO: FILE - Mike Pence is seen at Fox News Channel Studios, Feb. 22, 2023 in New York City.
Mike Pence is seen at Fox News Channel Studios, Feb. 22, 2023 in New York City.
Dia Dipasupil/Getty Images, FILE

It was not immediately clear whether Trump or Pence's legal teams are planning to appeal the rulings.

Pence has previously vowed to fight the subpoena to the Supreme Court if necessary, most recently telling ABC's Chief Washington correspondent Jonathan Karl, "We're going to respect the decisions of the court, and that may take us to the highest court in the land."

The February subpoena to Pence demanded he provide documents and testimony related to the failed attempt by Trump and his allies to overturn the 2020 election and followed months of negotiations between federal prosecutors and Pence's legal team.

Boasberg's orders followed upon another recent ruling by his predecessor in the role as D.C.'s chief judge, Judge Beryl Howell, who similarly rejected Trump's claims of executive privilege over the testimony of multiple other top aides, including his former White House chief of staff Mark Meadows.

In a letter reviewed by ABC News, White House special counsel Richard Sauber informed Jack Smith that President Joe Biden would not be asserting executive privilege over Pence's testimony.

"These events -- which reflected the most serious attack on the operations of the Federal Government since the Civil War -- threatened not only the safety of Congress and others present at the Capitol, but also the principles of democracy enshrined in our history and our Constitution," Sauber wrote to Smith in February, after Smith had reached out the White House to determine whether the president planned to assert privilege over Pence's grand jury appearance.

"In light of these unique circumstances, President Biden has determined that an assertion of executive privilege is not in the public interest with respect to the efforts to thwart the orderly transition of power under our Constitution."