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In sealed ruling, federal appeals court rejects Trump’s attempt to shield Pence from testifying about Jan. 6


Unless the United States Supreme Court issues a last-minute reprieve to Donald Trump, former Vice President Mike Pence will have to testify before a federal grand jury about the events of January 6, 2021, when a mob of Trump supporters violently breached the U.S. Capitol as Congress was certifying Joe Biden’s win in the 2020 election.

The former president asked the U.S. Court of Appeals for the District of Columbia Circuit to block Pence’s grand jury subpoena, but in a late-night ruling Wednesday, the court refused.

Trump has not yet indicated whether he plans to appeal the ruling to the Supreme Court.

The ruling itself, like other documents in the case, is sealed from public access, but the court’s denial of Trump’s emergency motion was clear from the case docket.

“[T]he emergency motion is denied,” the docket entry from Wednesday read. The case is before U.S. Circuit Judges Patricia Millett and Robert Wilkins, both Barack Obama appointees, and Gregory Katsas, a Trump appointee.

Pence was subpoenaed by special counsel Jack Smith, who was appointed in November by Attorney General Merrick Garland to spearhead the Justice Department’s investigation into the former president’s role in efforts to overturn the 2020 election as well as alleged mishandling of classified documents. Trump moved to block Pence’s testimony, but Chief Judge James Boasberg of the D.C. District Court issued a sealed ruling against the former president in March.

On April 20, Trump filed an emergency appeal to the D.C. Circuit — the same court that said in 2022 that Trump “will be subject to the same laws as all other citizens upon leaving office.” The circuit court again ruled against Trump, leaving the former president with the U.S. Supreme Court as the only avenue for a favorable ruling. Despite the Court’s current conservative makeup, however, it is highly unlikely that the justices would intervene to block Pence’s testimony.

Pence’s testimony regarding Jan. 6 could be uniquely and profoundly damaging for Trump. In the weeks immediately following Biden’s election win in 2020, Trump repeatedly demanded that Pence refuse to certify the electoral college votes.

The Electoral College formally selected Biden as the 46th president on Dec. 14, 2020; as vice president, Mike Pence was expected to certify Congress’ counting electoral votes on Jan. 6. Although Trump publicly called for Pence to refuse to carry out his ceremonial role, Pence certified the votes as mandated by the 12th Amendment.

Pence waged a failed challenge the grand jury subpoena on his own behalf, arguing that the constitution’s “speech or debate clause” shielded him from the obligation to give testimony — the same losing argument made to the Supreme Court by Sen. Lindsey Graham (R-S.C.) about his own testimony. Pence has indicated that he would not appeal the ruling and would comply with the subpoena.

Trump has not yet said whether he plans to appeal the D.C. Circuit’s ruling, but given the discretion typically afforded trial courts in discovery matters, it is unlikely that an appeal to the Supreme Court would yield a win for the former president.

The D.C. Circuit’s ruling against Trump was one of two legal debacles for the reality-star-turned-former-chief-executive Wednesday. That same day, E. Jean Carroll testified in her defamation lawsuit against Trump, telling jurors — sometimes in graphic detail — that the former president had raped her decades ago.

“He pulled down my tights and his hand, his fingers went into my vagina, which was extremely painful,” she said.

Asked what happened next, Carroll replied: “Then he inserted his penis.”

Carroll said she did not come forward about the alleged rape sooner because she was ashamed and thought it had been her fault. Trump attorney Joe Tacopina is expected to cross-examine Carroll when trial resumes Thursday.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos