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Federal prosecutors have asked a judge to compel Vice President Mike Pence to comply with a grand jury subpoena for his testimony in a criminal investigation of ex-President Donald Trump for efforts to overturn his 2020 election loss to President Joe Biden, a new report says.

The sealed motion, filed in recent days with Chief Judge Beryl Howell in U.S. District Court in Washington, D.C., came after attorneys for Trump asserted executive privilege over Pence's subpoena, CBS News reported Thursday.

On Wednesday, The New York Times reported that special counsel Jack Smith, who is overseeing the probe, obtained grand jury subpoenas compelling the testimony of Trump's daughter, Ivanka Trump, and her husband, Jared Kushner.

Both Ivanka Trump and Kushner served as senior White House advisors during her father's administration.

Trump previously sought to exercise executive privilege which allows certain presidential communications to be kept confidential over grand jury testimony in the probe, news outlets have reported.

He has also tried to invoke it in other recent legal matters, including a battle over the hundreds of documents seized by the FBI last summer from his personal residence at his Mar-a-Lago club in Palm Beach, Florida. Smith also is leading a criminal probe of Trump in connection with that case.

Smith's motion to compel Pence's testimony in the election investigation asks Howell to uphold the legal authority of the grand jury subpoena, according to CBS, which cited people familiar with the case.

Pence's spokesman, when asked about the report by CNBC, pointed to CBS' reporting that Howell recently issued a gag order barring people involved in the probe from commenting on it.

Howell on Thursday rejected an effort by media outlets to access records related to the grand jury investigation.

A spokesman for Smith declined to comment to CNBC. An attorney for Trump did not immediately respond to a request for comment.

Pence last week said he would fight the subpoena.

"No vice president in American history has ever been compelled to testify against a president with whom they serve," Pence said.

Pence plans to argue that his former role as president of the Senate which he held by virtue of being vice president of the United States means he is covered by the Constitution's "speech or debate" clause, which can protect legislative branch members from legal threats related to their work.

An attorney for Rep. Scott Perry, R-Pa., cited that clause earlier Thursday, telling a federal appeals court that the Justice Department has no authority to search the congressman's cell phone as part of the agency's probe of Trump.

Separately, the FBI seized a classified document in a search of Pence's home earlier this month.

That consensual search was scheduled weeks after an attorney for Pence alerted the government to a "small number" of records with classified markings that were found at his residence.

Biden's attorney general, Merrick Garland, appointed Smith as special counsel in November, in response to Trump's announcement that he is running for the Republican presidential nomination in 2024.

At the end of his first term in office on Jan. 6, 2021, Trump urged Pence to help challenge the election results by rejecting key Electoral College votes for Biden.

After Pence refused,a violent mob of Trump's supporters stormed the U.S. Capitol, sending the vice president and congressional lawmakers into hiding.

Pence, who is teasing a possible White House run of his own, said he believes there will be "better choices" than Trump for the 2024 Republican presidential nomination.

Read the full report from CBS.

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Trump investigation: Mike Pence testimony sought by prosecutor

Mike Pence is expected to fight his grand jury subpoena as part of the January 6 criminal investigation with the speech or debate protection a move that could prevent the special counsel from obtaining his testimony about key conversations with Donald Trump and members of Congress.

The special counsel overseeing the Trump investigations recently issued a subpoena to Pence a key witness with unique insight into a number of conversations with the former president and the efforts to stop the congressional certification of the 2020 presidential election.

Pence spoke to Trump one-on-one on 6 January 2021, when Trump was imploring him to unlawfully reject electoral college votes for Biden at the joint session of Congress, and was at a December 2021 meeting at the White House with Republican lawmakers who discussed objections to Bidens win.

The two interactions are of particular investigative interest to the special counsel Jack Smith as his office examines whether Trump sought to unlawfully obstruct the certification and defrauded the United States in seeking to overturn the 2020 election results.

Pence is not expected to ignore the grand jury subpoena, in recognition that some of the special counsels questions might pertain to issues beyond his role as presiding officer on 6 January a role the vice-president assumes when certifying a presidential election such as deliberations on election night, according to people familiar with the matter.

But Pence would invoke the speech or debate clause the constitutional provision that protects congressional officials from legal proceedings related to their work for testimony about his preparations for the day with Trump and members of Congress that the special counsel might not otherwise be able to obtain.

The issue for the special counsel is broadly whether the presiding officer at the joint session is protected by the clause, and if so, the extent of the protection for Pence in his preparations for assuming that role.

The crux of it is whether theyre going to treat him as a senator or representative whether he is covered by the text, said Steve Vladeck, a professor at the University of Texas School of Law.

But if you get past the threshold question, the historical distinction between legislative and political functions seems to put Pences behaviour on the legislative side of the line, Vladeck said, adding that the clause would probably be absolute for any deliberations Pence had about preparing for the joint session.

Pences lawyer would probably argue that not only is the joint session a legislative function as the justice department has said in prosecutions against low-level January 6 rioters but the presiding officer is more than just a ceremonial or ministerial role.

The logic comes in part from the fact that the presiding officer at the certification acts like the presiding officer when Congress is normally in session, or the chief justice during impeachment trials, adjudicating objections and complex parliamentary matters of procedure.

And if Pence can successfully show that he is covered by the speech or debate clause, legal experts said, supreme court precedent suggests the protection is absolute and cannot be overcome even by showing an overwhelming need for Pences testimony or underlying criminal activity.

So long as Pence is entitled to the protections of the immunity, there would be no way for the government to overcome that privilege where it applies, unlike executive privilege, said Stan Brand, the former general counsel to the House of Representatives and partner at Brand Woodward Law.

The supreme court ruled 8-1 in Eastland v United States Servicemens Fund (1975) that the clause was absolute when applied, superseding a 5-4 decision in Gravel v United States (1972) that the protection did not immunize a senator from testifying in cases involving third-party crimes.

The Gravel decision could be problematic for the special counsel, since the court separately found that Senator Mike Gravels preparation with his aide to introduce the Pentagon Papers into the congressional record was protected indicating acts in preparation for legislative activity are off-limits.

With Pence, those two cases could be particularly instructive, since the caselaw appears to fall squarely on what the special counsel is expected to want most from him: his deliberations with Trump and members of Congress about using objections and fake electors to overturn the election results.

And in United States v Helstoski (1979), the supreme court reiterated the absolute nature of the speech and debate clause for members, which prevented them from being questioned in any other place than Congress.

The 6-2 majority opinion in Helstoski in particular rebutted Justice John Paul Stevens assertion in dissent, that the admissibility of speech or debate should depend on the purpose for which it is offered, finding instead that the clause does not refer to the prosecutors purpose in offering evidence.

A potential exception to the speech or debate clause surfaced in United States v Brewster (1972) and later in Helstoski in 1979 for promises to take future legislative action.

But for Senator Daniel Brewster, who had been charged for soliciting and accepting bribes in exchange for introducing bills, the supreme court ruled that while the promise to accept a bribe was not covered, the legislative acts he undertook to complete his side of the arrangement voting, debating remained protected.

The court found only the illegal arrangement was not protected suggesting that the question of whether Trumps conduct was illegal would not strip Pence of the privilege against testifying.

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Mike Pence effort to block January 6 testimony could succeed, experts ...

Former Vice President Mike Pence recently announced he would challenge Special Counsel Jack Smiths subpoena for him to appear before a grand jury in Washington as part of the investigation into former President Donald Trumps efforts to overturn the 2020 presidential election and the related Jan. 6 attack on the U.S. Capitol. Mr. Pence claimed that the Biden D.O.J. subpoena was unconstitutional and unprecedented. He added, For me, this is a moment where you have to decide where you stand, and I stand on the Constitution of the United States. Mr. Pence vowed to take his fight all the way to the Supreme Court.

A politician should be careful what he wishes for no more so than when hes a possible presidential candidate who would have the Supreme Court decide a constitutional case that could undermine his viability in an upcoming campaign.

The former vice president should not want the embarrassing spectacle of the Supreme Court compelling him to appear before a grand jury in Washington just when hes starting his campaign for the presidency; recall the unanimous Supreme Court ruling that ordered Richard Nixon to turn over the fatally damning Oval Office tapes. That has to be an uncomfortable prospect for Mr. Pence, not to mention a potentially damaging one for a man who at least as of today is considered by many of us across the political spectrum to be a profile in courage for his refusal to join in the attempt to overturn the 2020 election in the face of Donald Trumps demands. And to be clear, Mr. Pences decision to brand the Department of Justices perfectly legitimate subpoena as unconstitutional is a far cry from the constitutionally hallowed ground he stood on Jan. 6.

Injecting campaign-style politics into the criminal investigatory process with his rhetorical characterization of Mr. Smiths subpoena as a Biden D.O.J. subpoena, Mr. Pence is trying to score points with voters who want to see President Biden unseated in 2024. Well enough. Thats what politicians do. But Jack Smiths subpoena was neither politically motivated nor designed to strengthen President Bidens political hand in 2024. Thus the jarring dissonance between the subpoena and Mr. Pences characterization of it. It is Mr. Pence who has chosen to politicize the subpoena, not the D.O.J.

As to the merits of his claim, The New York Times and other news media have reported that Mr. Pence plans to argue that when he presided over the joint session of Congress on Jan. 6 as president of the Senate, he was effectively a legislator and therefore entitled to the privileges and protections of the Constitutions speech or debate clause. That clause is intended to protect members of Congress from questioning and testifying about official legislative acts. Should the courts support his claim, Mr. Pence would not be required to comply with Mr. Smiths subpoena. Mr. Pence may also be under the impression that the legal fight over his claim will confound the courts, consuming months, if not longer, before he receives the verdict but its unclear what he hopes to gain from the delay. One would have thought Mr. Pence would have seized the propitious opportunity afforded him by Mr. Smith, most likely weeks or months before he even decides whether he will run for the presidency.

If Mr. Pences lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this Hail Mary claim, and Mr. Pence doesnt have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.

Inasmuch as Mr. Pences claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our countrys history where it was thought imperative for someone in a vice presidents position, or his lawyer, to conjure the argument. In other words, Mr. Pences claim is the proverbial invention of the mother of necessity if ever there was one.

Any protections the former vice president is entitled to under the speech and debate clause will be few in number and limited in scope. There are relatively few circumstances in which a former vice president would be entitled to constitutional protection for his conversations related to his ceremonial and ministerial roles of presiding over the electoral vote count. What Mr. Smith wants to know about are Mr. Pences communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States.

Whatever the courts may or may not find the scope of any protection to be, they will unquestionably hold that Mr. Pence is nonetheless required to testify in response to Mr. Smiths subpoena. Even if a vice president has speech or debate clause protections, they will yield to a federal subpoena to appear before the grand jury. This is especially true where, as here, a vice president seeks to protect his conversations with a president who himself is under federal criminal investigation for obstructing the very official proceedings in which the special counsel is interested.

Mr. Pence and his inner circle should be under no illusion that the lower federal courts will take their time dispensing with this claim. The courts quickly disposed of Senator Lindsey Grahams speech or debate clause claim, requiring him to testify before the grand jury empaneled in Fulton County, Ga. and his claim was far stronger than Mr. Pences. In the unlikely event that Mr. Pences claim were to make it to the Supreme Court, it, too, could be expected to take swift action.

Mr. Pence undoubtedly has some of the finest lawyers in the country helping him navigate this treacherous path forward, and they will certainly earn their hefty fees. But in cases like this, the best lawyers earn their pay less when they advise and argue their clients cases in public than when they elegantly choreograph the perfect exit in private before their clients get the day in court they wished for.

Mr. Pences lawyers would be well advised to have Jack Smiths phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pences lawyers may be thinking. No prosecutor, least of all Mr. Smith, will abide this political gambit for long. And Mr. Pence shouldnt let this dangerous gambit play out for long. If he does, it will be more than he wished for.

It is a time-tested axiom in the law never to ask questions you dont know the answer to. This should apply to politicians in spades. But the die has been cast by the former vice president. The only question now is not whether he will have to testify before the grand jury, but how soon. The special counsel is in the drivers seat, and the timing of Mr. Pences appearance before the grand jury is largely in his hands. Mr. Smith will bide his time for only so long.

J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, provided advice to then-Vice President Mike Pence on the run-up to the Electoral College count on Jan. 6, 2021.

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Opinion | Mike Pence Should Drop His Grand Jury Subpoena Gambit - The ...

Mike Pences former adviser said she believes the Justice Departments subpoena serves as a "security blanket" for the former vice president as hes reportedly mulling a 2024 presidential run.

Olivia Troye, former Homeland Security adviser and counter terror adviser for Pence during his time at the White House, said in an interview on MSNBC Saturday that the DOJ subpoena, viewed as the most aggressive step taken so far in investigations into former President Donald Trumps efforts to overturn the 2020 election results, gives the former vice president some "political top cover."

"I do think he has an intention to run, and with the subpoena I think it gives him political top cover. This is sort of the security blanket that I think Mike Pence has been looking for in terms of coming forward and actually talking about what really happened in a very honest and truthful way behind closed doors," Troye said. "And then publicly, he can say, look, I was compelled legally. I didnt willingly do this. And he has some political top cover there for the base of the Republican Party. Although, I feel like that base is gone. Although in his calculation, maybe he still thinks that he can win them back."

On Friday, the FBI discovered an additional document with classified markings at Pence s Indiana home following the discovery by his lawyers last month of sensitive government documents there. The search, described as consensual after negotiations between Pence's representatives and the DOJ, comes after he was subpoenaed in a separate investigation into efforts by Trump to overturn the 2020 election.

TRUMP CALLS PENCE A VERY HONORABLE MAN AFTER SPECIAL COUNSEL JACK SMITH SUBPOENA

Former Vice President Mike Pence, seen with his wife Karen walk at the Capitol, was subpoenaed as part of the Justice Department's special counsel investigation. (House Select Committee via AP, File)

Pence is the latest official in Trump's administration to be subpoenaed as part of the Justice Departments special counsel investigation, but Pence is the highest-ranking official known to have been summoned. The subpoena issued by special counsel Jack Smith, sets the stage for a potential dispute over executive privilege.

In a sit-down interview in November with CBS News host Margaret Brennan, Pence said explained his decision not to testify before the House selection committee investigating the Jan. 6 riot.

"Congress has no right to my testimony," Pence said then. "We have a separation of powers under the Constitution of the United States. And I believe it would establish a terrible precedent for the Congress to summon a Vice President of the United States deliberations that took place at the White House."

"Im closing the door on that," Pence added at the time. "I must say again, the partisan nature of the Jan. 6 committee has been a disappointment to me."

Former Vice President Mike Pence, seen talking from his secure loading dock location during the Jan. 6 riot, is facing a DOJ subpoena related to investigations into former President Trump's efforts to overturn the 2020 election results. (House Select Committee via AP)

Troye speculated Saturday that she thinks Pence is more likely to cooperate with the DOJ.

"I think in his head, in his perspective, he thought that the Jan. 6 committee was too political. And I think that was the excuse that he used," Troye told MSNBC. "Now granted, I personally believe completely differently. I think he should have been forthcoming. I think he should want to willingly tell the American people the truth about just how bad the situation was. But in some ways, its a political advantage.

"If DOJ, you know, takes Donald Trump out of the running, that works in Mike Pences favor," she added. "And Im sure that is part of the calculus going to the Pence team. Its not like they are not thinking about that strategic bigger picture in the long run."

Former Vice President Mike Pence might evoke executive privilege if he chooses not to comply with the DOJ subpoena issued by special counsel Jack Smith. (House Select Committee via AP, File)

Its not clear if Trump and Pences legal teams will coordinate on a response to the DOJ subpoena. Pence has been represented by veteran attorney Emmet Flood, whom Troy described as an "executive privilege hawk."

If Pence ultimately does not wish to comply with the subpoena, he may look for Trump to intervene by invoking executive privilege, according to The Associated Press. Such an action could result in closed-door arguments before the D.C. court's chief federal judge, Beryl Howell.

"Lets be honest. Pence has been stalling to tell the truth and really talk about this for over two years now. Thats how long its been. And they continue to stall this process," Troye said Saturday.

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Pence is now the third current or former top U.S. official, joining Trump and current President Joe Biden, to have their homes scoured by FBI agents for classified records.

Pence and Biden have presented themselves as fully cooperative compared to the Justice Department having to secure a warrant to raid Trumps residence at Mar-a-Lago in Florida last year.

The Associated Press contributed to this report.

Danielle Wallace is a reporter for Fox News Digital covering politics, crime, police and more. Story tips can be sent to danielle.wallace@fox.com and on Twitter: @danimwallace.

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Mike Pence's former adviser says DOJ subpoena acts as 'security blanket ...

Former Vice President Mike Pence continues to leave the door open to 2024 presidential run but told CBS News this week that he does not feel any rush to formally announce a bid for the Republican presidential nomination, even though his former boss, former President Donald Trump, is already seeking it.

"I think we've got time," Pence said in an interview on Tuesday in The Villages, a Republican stronghold in central Florida.

Pence's lack of urgency about an announcement reflects broader dynamics inside the Republican Party, where the 2024 presidential race has yet to dominate discussions among rank-and-file voters and major donors, particularly with the new House Republican majority in the political spotlight.

With Congress driving national debates, Pence and many other possible 2024 Republican contenders are focusing instead on their current elected offices or on bolstering ties with the party's voters. On Saturday, Pence, long close to the conservative evangelical community, will launch a tour of megachurches.

"In the months ahead, I'm just going to be listening to the American people," Pence said. "We're going to continue to travel, we're going to continue to listen."

"I think we're going to have new leadership in this party and in this country," he added. "And I have every confidence that our voters will rally behind our standard bearer and we'll give the country a new beginning."

When asked why he and other possible Trump rivals are staying out of the 2024 race for now, Pence said that Trump's decision to enter the race last November will not change his own deliberations: "The only thing we've decided for sure is that we weren't going to let anybody else make our decision for us."

CBS News interviewed Pence after an event he held promoting his memoir, "So Help Me God," which was published last year by Simon & Schuster, a subsidiary of CBS News' parent company Paramount Global.

Pence's book signing was in The Villages, a high-profile retirement community in Sumter County where Trump won 68% of the vote in 2020. Florida Gov. Ron DeSantis, considered another top possible challenger to Trump, won the county with 73% of the vote in his 2022 reelection bid.

Ahead of last year's midterm elections, Pence worked to build his political capital inside the party, visiting 35 states to campaign for Republican candidates up and down the ballot. Since then, he has visited early voting 2024 states like New Hampshire and Iowa as part of his book tour.

At book gatherings, Pence often fields questions from a moderator or the crowd about his time with Trump, including the tumultuous end of their relationship leading up to the Jan. 6 attacks on the Capitol. He often says he and Trump will never see "eye to eye" about that day, when Pence oversaw the congressional certification of the 2020 presidential election and Trump urged him to take steps to block it.

Since Republicans had a disappointing showing in the midterms, winning only a narrow House majority and failing to win control of the Senate after aiming for a "red wave," Pence has suggested to audiences that it's time for Republicans to move on from candidates who are "focused on relitigating the past," though he has been careful with remarks and still speaks highly of his years as vice president.

In his CBS News interview, Pence drew a connection between the stolen election rhetoric that fueled many of those involved in the Jan. 6 attacks to the recent attacks on Brazil's government buildings and democratic institutions, which were carried out by supporters of former Brazil President Jair Bolsonaro.

"It is evidence that what happens in the United States has repercussions around the world. I have no doubt that this tragic day, in January of 2021 in this country, played some role in sowing the seeds of what's taking place in Brazil," Pence said.

Pence also said he believed there is a "double standard" between how the Justice Department handled recently revealed papers marked as classified held at a Biden think tank, and how the government executed a search for documents marked as classified at Trump's resort in Florida. Attorney General Merrick Garland has assigned the U.S. attorney in Chicago to review the roughly 10 documents found at the office used by President Biden after he left the vice presidency, while a special counsel has been appointed to probe the Mar-a-Lago document matter, where hundreds of sensitive documents were discovered.

Pence called the Mar-a-Lago search "a gross overreach," and when asked if there should also be a special counsel investigating the Biden documents, Pence said, "I think there should be equal treatment under the law."

"They're different in degree, but not in kind," Pence said about the two investigations, when asked if he would acknowledge a difference in the episodes, in terms of scope and context.

"And when the American people see President Biden receiving one form of treatment with the discovery of classified documents that were retained after he left the office of the vice president, they see President Trump treated in an entirely different way," he said.

"Again, the handling of classified material is a very serious issue for our nation, and we ought to take it seriously. But there ought to be equal treatment under the law," he added.

Turning to the new House Republican majority, Pence, who served in the House for over a decade, told the crowd in The Villages that last week's chaotic battle for the speakership was "invigorating" and said he has "every bit of confidence" that House Speaker Kevin McCarthy "is going to lead that new conservative majority with skill and integrity and conservative principles."

"That's what democracy should look like," Pence told CBS News about the contentious, multi-ballot showdown over the speakership on the House floor. "I think that vigorous open debate, the airing of differences, and ultimately the result is going to benefit the Congress and ultimately benefit the American people."

As he mulls a 2024 run, Pence's policy group, Advancing American Freedom, has begun to lay out legislation recommendations for the new GOP-controlled House. On Monday, the group released a framework focused on energy independence that seeks to temper climate change-related regulations and committees.

Pence told CBS News he thinks it's "incumbent on Speaker McCarthy and the new Republican majority" to reinstate or maintain several immigration policies enacted during the Trump-Pence administration, such as building more walls along the U.S.-Mexico border, the "Remain in Mexico" policy and Title 42, a pandemic-era border policy aimed at curbing the number of migrants who are allowed to seek asylum.

The Supreme Court blocked the Biden administration from ending Title 42 last month.

Robert Costa is CBS News' chief election and campaign correspondent based in Washington, D.C.

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Pence on possible 2024 presidential run: "I think we've got time"