Former Vice President Mike Pence’s claim to be immune from testifying to a grand jury investigating former President Donald Trump took another well-merited blow over the weekend.
Pence reportedly is citing the clause of the Constitution that says members of Congress “shall not be questioned” outside of Congress regarding legislative “speech or debate.” Because the vice president serves as president of the Senate, meaning he can cast a tiebreaking vote, although he has no other legislative duties, Pence reportedly is claiming his discussions about the counting of presidential electoral votes makes him off limits to grand juries looking into the controversy over the 2020 election.
FORMER JUDGE AND INFORMAL ADVISER TO PENCE QUESTIONS STRATEGY
Last week, I noted that Pence claims immunity from congressional inquiries by virtue of being a member of the executive branch but now claims to be a part of Congress in order to escape inquiry from the executive branch. The problem isn’t that he is claiming more than one form of immunity — after all, the same officials can claim both executive privilege and attorney-client privilege — but that he is claiming directly conflicting privileges. One cannot be “X” to escape “Y” but then be “Y” to escape “X.”
Several considerations further argue against Pence’s new claim. One is that the Constitution specifically makes the vice president subject to impeachment, which applies only to executive and judicial branch officials. The second is that the vice president is not subject to penalties the Senate can place on its own members because, of course, he is not a member of the Senate but only a presiding officer. As Alexander Hamilton put it in Federalist 68, one advantage of having a vice president is so that the person presiding over the Senate will not be someone “elect[ed] out of its own body.”
Meanwhile, Pence’s assertion suffered a comeuppance of a sort last weekend from one of his own favorite constitutional scholars. Conservative former federal Judge J. Michael Luttig was the very constitutional expert to whom Pence turned when ascertaining that he did not have the power to overturn electoral votes that Trump bizarrely claimed he did. Well, last Friday, Luttig issued a series of tweets that threw cold water on Pence’s novel legal gambit.
“The Vice President performs an essentially ceremonial role during the actual counting of the electoral votes,” Luttig wrote, “[and] performs an essentialy ministerial role when presiding over the Joint Session in circumstances in which the next president is not determined by the initial counting of the votes transmitted to Congress. And in both roles, the Vice President is constitutionally serving independently of the United States Senate and House of Representatives.”
To argue against this, Pence would need to argue against himself. Pence’s most courageous act as vice president was insisting, against fierce pressure from Trump but nonetheless correctly, that he did not have independent power to adjudge the legitimacy of electoral votes. He did so specifically because, he said, his power was merely ministerial.
Just as he can’t claim to be a legislator to escape executive review after already claiming to be executive to escape legislative review, so too he cannot claim to be engaging in legislative speech or debate when he already has acknowledged he possesses no legislative power, but only a ministerial role. Again, separate claims might both make sense, but contradictory claims cannot.
All of which would be important constitutionally regardless of their practical effect. In this case, though, abiding by Luttig’s correct constitutional analysis also will serve the national good in an important, pragmatic way. With Trump running for reelection, voters need resolution of the legal claims against him sooner rather than later. The turmoil to the political system would be significant if an indictment and trial of Trump is delayed well into the 2024 election year. Yet if Pence pushes his abstruse legal claims to the “nth degree,” tying up the courts with briefs and counter-briefs, the special counsel’s investigation into Trump could be hampered. This is fair neither to voters nor to Trump, the latter of whom does not deserve to have the investigation casting aspersions on his status if a quicker resolution otherwise would exonerate him.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Luttig and others offered still more reasons, excellent ones, why Pence’s claims are wrong, but those can wait for legal filings. There’s no need for Pence to push things that far, though. The “principle” for which he says he is fighting is not obviated if he announces he is voluntarily waiving it. For the good of the country, that is what he should do.