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Special counsel Jack Smith’s team probably doesn’t need much help litigating against former Vice President Mike Pence’s “speech or debate” claim, but Smith just got some unofficial assistance from an unlikely corner.
In the conservative National Review on Wednesday, Republican lawyer Andrew McCarthy wrote that Pence’s reported legal ploy is “frivolous and should be rejected swiftly.”
As I noted yesterday, the former vice president apparently wants to use the Constitution’s “speech or debate” clause to avoid complying with Smith’s subpoena. The clause states that members of Congress, “for any Speech or Debate in either House ... shall not be questioned in any other Place.” It does not, however, mention vice presidents.
Nonetheless, Pence reportedly wants to use his ceremonial Senate role presiding over the Jan. 6, 2021, certification of electoral votes to get out of testifying about Donald Trump in Smith’s probe.
McCarthy picks up on the “plain text” point, among others, observing that even though another part of the Constitution makes the vice president the president of the Senate, “that does not make the vice president a senator, which (besides representatives) is what the speech-or-debate clause applies to.”
While I should point out that there are open legal questions about the clause's application to vice presidents, it's notable that this criticism of Pence is coming from a conservative corner. I’d also point out that I learned about McCarthy’s National Review article from the Twitter feed of former federal judge and conservative stalwart J. Michael Luttig, who famously advised Pence ahead of Jan. 6 that the vice president couldn’t overturn the election.
Luttig deemed McCarthy’s article “interesting,” without elaborating. It will certainly be interesting to see what judges who are still on the bench think.