Pence: Do the Right Thing

Gary Schmitt is a senior fellow in the Social, Cultural and Constitutional Studies Program at the American Enterprise Institute.

When former Vice President Mike Pence talks about his preferred nominees for the federal bench and the Supreme Court, he will make clear he does so because they are likely to be “originalists” when it comes to the Constitution. That is, he wants judges, he argues, who interpret the Constitution based on its original meaning and closely tied to the text of that document. What he doesn’t want are judges who let current policy preferences or partisan politics dictate their reading of the Constitution.

Given that commitment to the text of the Constitution, it’s surprising to see reporting that Pence will be refusing a subpoena from special counsel Jack Smith, investigating former President Donald Trump’s efforts to overturn the 2020 presidential election. If the reporting is accurate, Pence will be claiming a privilege tied to the “speech and debate” clause in Article 1, Sec. 6 of the Constitution:

“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Putting aside for the moment of whether “speech and debate” should include private conversations with the former president, his lawyers, or his White House aides, Pence’s claim runs into an obvious textual problem. Section 6 of Article I begins with “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.” In other words, the “they” in the rest of the section that ends with the speech and debate provision are senators and representatives. Nowhere is the President of the Senate mentioned. And with good reason: other than his power to break tied votes in the Senate, the Vice President has no legislative role.

The irony of Pence’s argument is that he will presumably avoid this obvious textual obstacle by relying upon the Supreme Court’s decidedly non-textualist decision to abandon a “strictly literal” reading of the Speech and Debate clause in Hutchinson v Proxmire (1979).  Reading the provision’s “central purpose” as providing critical support for the principle of separation of powers, the Court has been willing to grant immunity from criminal prosecutions or civil suits to members, and even staff, if their activities can be plausibly tied to their legislative functions. 

Nevertheless, even the Court might be a bit wary of continuing to expand the “speech and debate” provision. When Sen. Lindsey Graham attempted to avoid testifying in front of Georgia grand jury investigating Trump’s seeming effort to “find” votes in that state’s presidential election to turn it in his favor, he cited the Speech and Debate Clause. However, the Circuit Court in Fulton County Special Purpose Grand Jury v Lindsey Graham (2022) rejected that appeal as a bridge too far, reading the clause as not “extending beyond the legislative sphere,” with sphere tied to work done “in a session of Congress by one of its members in relation to business before it.” Conversations with Trump and his lawyers in which they were pushing Pence to reject slates of electors based on an obviously dubious interpretation of the Vice President’s constitutional authority would be stretch for inclusion in “legislative” business.

Regardless, of how the courts might finesse their reading of the Speech and Debate Clause, the simple fact is, the former vice president could, if he wanted, waive his claim of immunity. And, indeed, the fact that his senior staff has already testified in front of the grand jury would seem to suggest he should as well.

But the key here is that the subpoena is not a challenge to the workings of Congress by the executive branch—in this case the Justice Department—but the opposite. Congress was attacked and the investigation is intended to see whether the then president of the United States tried to overturn a constitutionally mandated congressional process. By attempting to use the Speech and Debate Clause to shield himself from testifying before a grand jury, Pence is turning what the Court said was the clause’s underlying purpose on its head.

In reporting on the Pence decision, National Review suggested that Pence was attempting to square the following circle: “As long as Trump remains the Republican Party’s central personality, Pence does not want to be seen as overly cooperative with federal prosecutors ahead of what many anticipate to be his own 2024 presidential run.” Although politically understandable—or, perhaps, more accurately said, predictable—refusing to testify before a grand jury investigating the most serious threat to the constitutional order in more than a century and a half can’t help but put a dent in the former vice president’s reputation for having done the constitutionally right thing on January 6.   

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