Former Vice President, Mike Pence, is attempting to fight a subpoena requested by the Special Counsel regarding former president Donald Trump’s activities after the 2020 presidential election. 

The Special Counsel has been investigating Trump’s involvement in the January 6th incident (the attack on the U.S. Capitol in 2021). Given that Mike Pence was Trump’s vice president, those investigating the case requested that Mike Pence give testimony regarding his interactions with Trump and the actual day the Capitol was attacked. 

Some officials are saying that Pence testifying could put the separation of powers at risk.  “It is admittedly a constitutionally murky area with no clear outcome,” said Mark Rozell, a George Mason University political scientist who specializes in executive privilege. “Since there is a legislative function involved in the vice president presiding over the Senate, a court very well could decide that it must address the scope of the speech or debate privilege and whether it would apply in this case,” he added.

Pence has decided to fight his order to the court (subpoena). Mike Pence is arguing that because he was the former president of the Senate, he is protected from some of the Justice Department’s demands. He argues that the constitutional provision covers him from legal proceedings such as a subpoena. 

Pence’s decision to fight back derived from an FBI search in which material holding classified information was found. The same situation has happened to Donald Trump and current U.S. president, Joe Biden. Speculation infers that the choice to argue will help Pence avoid being seen as “cooperative” with Trump. Roy Brownell, former counsel to Senate Minority Leader Mitch McConnell and author of a paper on vice presidential privilege, said that if Pence ultimately asserts “speech or debate” protections, it will be “the first time it’s ever been clearly expressed that the vice president is claiming his own constitutional privilege.”

It is unclear on how the Court will respond to the issue, even though they have upheld executive privilege countless times before.