Former Vice President Mike Pence answers questions from the press during a visit to Florida International University (FIU) in Miami, Florida, as part of the book tour for his New York Times bestselling book, So Help Me God, on Friday, Jan. 27, 2023.

Scott McIntyre | The Washington Post | Getty Images

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...

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