Pence will fight subpoena in special counsel probe of Trump’s attempt to overturn 2020 election

Former Vice President Mike Pence is planning to challenge a subpoena issued to him by the special counsel investigating ex-President Donald Trump‘s efforts to overturn his 2020 election loss, a person familiar with the matter told CNBC on Tuesday.

Pence will argue that his former role in government protects him from having to comply with special counsel Jack Smith’s subpoena for his testimony, according to the person, who confirmed Politico’s reporting on the ex-vice president’s legal strategy.

Under the U.S. Constitution, the vice president is also the president of the Senate. Pence, who served in that role under Trump, will argue that he is therefore covered by the constitutional protections given to members of the legislative branch — including a clause that protects them from legal threats stemming from their legislative work.

A spokesman for the special counsel declined to comment.

Pence, who is considered a likely 2024 presidential contender, is expected to discuss the subpoena while visiting the key primary state of Iowa on Wednesday.

Smith was appointed special counsel in November to head a criminal investigation into whether Trump unlawfully interfered with the transfer of power after losing to President Joe Biden in the 2020 election.

As part of a multi-pronged effort to overturn his loss, Trump had pressured Pence to reject key Electoral College votes when he presided over a joint session of Congress to confirm Biden’s victory on Jan. 6, 2021. After Pence refused, a mob of Trump’s supporters stormed the U.S. Capitol, forcing the vice president and members of Congress to flee their chambers.

Trump, who never conceded defeat and has continued to spread false claims of election fraud even after leaving the White House, has repeatedly attacked Pence for lacking the “courage” to defy his obligation to confirm Biden’s electoral victory.

The subpoena to a high-profile official like Pence, which was first reported last week, could suggest that Smith’s investigation is nearing its conclusion, Politico reported. But Pence’s forthcoming challenge to the subpoena could prolong the special counsel’s efforts, because his legal argument is largely unsettled in the courts.

News of Pence’s legal plans came ahead of his widely anticipated White House bid, which could pit him directly against his former boss in the Republican primary arena. Trump, who remains a de facto leader in the Republican Party, has for months been the only major 2024 candidate in the race — until Tuesday morning, when former South Carolina Gov. Nikki Haley threw her hat in the ring.

Smith is also investigating the hundreds of classified documents that were shipped to Trump’s Palm Beach, Fla., resort home Mar-a-Lago, where he has lived since his leaving the presidency. The FBI raided Trump’s home last year.

In recent months, Pence and Biden have both found materials with classified markings in their personal residences.