He appears to be laying the groundwork to explain to GOP voters that he took extraordinary measures to try to avoid testifying about Trump. It could backfire.
NRPLUS MEMBER ARTICLE C iting an unidentified person said to be familiar with his plans, the New York Times reports that former vice president Mike Pence will argue that the Constitution’s speech-or-debate clause gives him immunity from testifying in the grand-jury investigation of former president Donald Trump’s efforts to reverse the outcome of the 2020 election won by Joe Biden.
We noted last week that Jack Smith, the special counsel in the Trump investigation, has subpoenaed the former vice president. If the Times is correct about Pence’s intentions, his claim is frivolous and should be rejected swiftly.
By its plain text, the speech-or-debate clause (U.S. Const., art. I, § 6, cl. 1) applies only to “The Senators and Representatives” of the legislative branch created by Article I. The vice president is an executive officer under Article II. True, the vice president is made the “President of the Senate” (in art. I, § 3, cl. 4). But that does not make the vice president a senator, which (besides representatives) is what the speech-or-debate clause applies to.
The limited protection prescribed by the speech-or-debate clause also shows that it does not apply to vice presidents. The clause says that “the Senators and Representatives” “shall not be questioned in any other Place” [i.e., other than in Congress] “for any Speech or Debate in either House.” The vice president does not speak or debate, much less propose bills or otherwise legislate. Indeed, even in the role of president of the Senate, the vice president merely breaks the rare tie when the chamber is deadlocked — a power of marginal legislative value, at best, since as a practical matter the vice president exercises it in accordance with the wishes of the president, the chief executive.
Even for the senators and representatives textually covered by the speech-or-debate clause, its immunity is limited. I elaborated on this last fall, when Senator Lindsey Graham tried to assert speech-or-debate immunity to avoid testifying in the Fulton County state grand jury that is investigating Trump’s efforts to reverse Georgia’s 2020 presidential election. In rejecting Graham’s claim, the Eleventh Circuit federal appeals court observed that the protection applies to “Members of Congress” and that the Supreme Court had “warned” that it should not be “extend[ed] . . . beyond its intended scope, its literal language, and its history[.]” The court added that the immunity the clause confers does not “extend[] beyond the legislative sphere” — an ambit limited to activities that take place “in a session of Congress by one of its members in relation to business before it.”
Obviously, the special counsel wants to question Pence about meetings he had with President Trump, Trump advisers, and executive officials regarding the pressure Trump was applying to Pence to derail the counting of state-certified electoral votes at the January 6 joint session of Congress. Again, Pence was not a member of Congress but an executive official, and the pertinent conversations were among executive officials, some of whom were trying to thwart congressional business. Given the Supreme Court’s admonition against expanding speech-and-debate immunity to novel circumstances, we can be confident that the judiciary is not going to extend it to the vice president or to executive actions in anticipation of a congressional session, rather than to legislative actions.
It is ironic, then, that — according to the Times — Pence plans to contend in an appearance in Iowa on Wednesday that he will fight the subpoena, on speech-or-debate grounds, because doing so is “necessary to protect the separation of powers.” How does it protect separation of powers for an executive official to assert a legislative privilege in order to deny evidence to an executive law-enforcement investigation that Congress has not only supported but has urged to bring charges?
If the Times report is accurate, Pence is turning to a creative speech-or-debate theory of immunity because the source of immunity that would naturally apply to his status as vice president — namely, executive privilege — is unavailing. Executive privilege is an immunity doctrine that protects from disclosure the communications between the president and executive officials to facilitate the formation and execution of executive actions and policies. Nevertheless, the privilege is qualified. It has been held not to shield testimony or other evidence subpoenaed in connection with criminal investigations — at least in the absence of a demonstration that confidentiality is required to protect military, diplomatic, or sensitive national-security secrets. That is why executive-privilege claims have repeatedly failed in the January 6 investigations, and why the grand jury has reportedly heard testimony from former executive-branch officials who were top advisers to both Trump and Pence.
This is worth noting. Executive privilege is unavailing in this context because the courts have reasoned that, when the rule of law is at stake in the context of a criminal investigation, even an important privilege that provides immunity in other contexts must give way. A fortiori, even if courts might be inclined, in some hypothetical situation, to expand speech-or-debate immunity (which would fly in the face of the text and purpose of the speech-or-debate clause), they are not going to do so in the context of a criminal investigation that is exploring an effort to undermine a constitutionally mandated congressional proceeding — part of a scheme to reverse the outcome of a presidential election that ended up sparking a violent uprising at the Capitol.
If the Times is right, I’ll confess to being surprised by Pence’s posture. I assumed the former vice president would cooperate with the special counsel. Pence, however, is seriously considering a 2024 presidential run. That undoubtedly is what is taking him on Wednesday to Iowa, the state whose caucuses kick off the GOP nomination contest a year from now. Pence plainly fears the blowback from Trump devotees if he is perceived as voluntarily providing important testimony to a grand jury and special counsel — especially when that grand jury, at the behest of the special counsel, could promptly indict Trump for obstructing the January 6 joint session of Congress.
Pence appears to be laying the groundwork to explain to Republican voters that he took extraordinary measures to try to avoid testifying. I suspect this will backfire: Pence’s credibility will take a hit for taking an untenable legal position, he will lose support from people who admire his refusal to buckle under Trump’s pressure on January 6, and he will get no love from Trump’s base — which will remember only that he testified, not that he tried not to.