Former Vice President Mike Pence’s lawyers must feel good. This week, it was reported that Pence plans to resist a subpoena from the special counsel investigating former President Donald Trump’s role in the Jan. 6, 2021, attack on the Capitol. The defense his lawyers have crafted for Pence’s defiance is novel, at first glance credible and, ultimately, a little too clever by half.
Trump’s lawyers have reportedly been preparing to fight the Pence subpoena by invoking executive privilege, and I’d assumed that Pence would do the same if he opted not to cooperate. But Pence is arguing that he can’t testify because he was performing his job as president of the Senate on Jan. 6. As an officer of the Senate, he was protected under the “speech or debate” clause of the Constitution, the argument continues. That clause in Article I, Section 6, says that “for any Speech or Debate in either House,” senators and representatives “shall not be questioned in any other Place.”
Pence confirmed the strategy Wednesday night, telling reporters that Trump’s executive privilege claim is “not my fight.”
“My fight is on the separation of powers,” he said. “My fight against the DOJ subpoena, very simply, is on defending the prerogatives I had as president of the Senate to preside over the Joint Session of Congress on Jan. 6.”
Pence can make this case at all only by thoroughly exploiting one of the weirdest features of the Constitution.
Right away, Pence’s argument is harder to dismiss outright than a claim (again) that the executive branch has no right to investigate the executive branch, as Trump has repeatedly tried (and failed) to do. It also raises constitutional questions that have never had to be answered in a court ruling. When I saw Politico’s initial report that Pence would be leaning on his position in the legislative branch as an escape hatch, I almost appreciated the bravado.
It’s especially audacious of Pence to make this case against the special counsel’s subpoena after he refused to provide testimony to the House Jan. 6 committee as a former member of the executive branch. In that case, he told CBS News, it would set “a terrible precedent for the Congress to summon a vice president of the United States to speak about deliberations that took place at the White House.”
Maddening as that is, Pence can make this case at all only by thoroughly exploiting one of the weirdest features of the Constitution. The vice presidency was added to that document as an afterthought, and as a consolation prize the founders determined that the person in that role would also preside over the Senate and break any tie votes. It wasn’t exactly a prestigious gig, as I wrote in 2021: “From the early 19th century to the early 20th century, the vice presidency was in a no-man’s land between the executive and legislative branches, with little incentive to take the job seriously.” It was only in the last 100 years that the position took on its current vague “deputy president” shape.
The biggest gift that Pence’s lawyers have is that Justice Department lawyers have made similar arguments about the vice presidency and the speech-or-debate clause. The Justice Department argued in a 2019 amicus brief that “Senate officers or employees, just as much as sitting Members of the Senate, are protected by the Clause for their assistance in the performance of the Senate’s legislative functions.”
The issue came up more recently in a 2021 motion to dismiss a civil suit alleging that the 2020 election was stolen. The Justice Department noted that the plaintiff’s claims against the members of Congress and Pence concerned their role in accepting electoral votes on Jan. 6, arguing that “Members of Congress” are protected under the speech-or-debate clause but not specifically including Senate officers in their assessment.
The Senate also has argued that the vice president is covered under that clause in court cases. A lawyer representing the Senate declared in a 2014 appellate hearing that “it is certainly the position of the Senate that the vice president is covered when he’s presiding over the Senate.” (You may recall that President Joe Biden was vice president at the time.)
But, as that same lawyer admitted to the judges hearing the case, there has never been an explicit ruling on that front. And a plain-text reading of the Constitution doesn’t make this a slam dunk for Pence. Article 1, Section 6, specifically refers only to the rights of “Representatives and Senators.” Pence and his lawyers can’t be positive a court will rule for his having it both ways.
We can’t pretend that Pence is making this play just because he loves esoteric constitutional questions.
The vice presidency is still the only role in the federal government with so much overlap between the two branches. And as a broad constitutional question, he may have a point about his immunity here — at least with regard to his role on Jan. 6. Pence could well argue that many of the conversations he had with Trump about the lead-up to certifying the electoral ballots were in his role as president of the Senate, given this was the capacity in which he was been pressured to overturn Biden’s win.
But there are other questions a court is going to have to answer: Does Pence’s immunity extend to conversations about the election and its aftermath more broadly? Would Pence have had to notify the president that this was the case? Is there any evidence that he did make that distinction at the time?
The answers carry potentially fascinating implications for future cases. That having been said, we can’t pretend that Pence is making this play just because he loves esoteric constitutional questions. NBC News’ Vaughn Hillyard made that clear when he repeatedly pressed Pence about whether, subpoena aside, he’d voluntarily sit down with the Justice Department to provide testimony. Though doing so wouldn’t set precedent for future vice presidents, Pence refused to answer.
It’s apparent that Pence’s presidential ambitions far outweigh his devotion to the separation of powers. Pence knows he can’t be seen cooperating in an investigation of Trump and have any hope of winning over Republican primary voters, and his lawyers landed on this argument. It’s not like he has much of a chance anyway, but at least those lawyers really managed to earn their fee with this one.
Hayes Brown is a writer and editor for MS NOW. He focuses on policymaking at the federal level, including Congress and the White House.