What it means for Pence to fight his subpoena — politically and legally

On the afternoon of Jan. 6, 2021, President Donald Trump went after Vice President Mike Pence for refusing to go along with his plot to overturn the 2020 election. He did so even after, according to witnesses, Trump was made aware of the unrest at the Capitol, where some of the rioters chanted, “Hang Mike Pence.” And Trump’s singling him out wound up diminishing whatever chance Pence might ever have of becoming president, by turning the GOP base against him — an effect that registered almost immediately.

As for those hoping Pence will answer investigators’ questions about all that? Apparently they’ll have to keep waiting: Pence will resist a grand jury subpoena, issued as part of special counsel Jack Smith’s investigation into Trump’s actions vis-a-vis Jan. 6. (Politico’s Kyle Cheney and Josh Gerstein broke the news Tuesday.)

Pence will reportedly argue that the speech or debate clause of the Constitution makes him immune from testifying. The idea is effectively that Pence was serving a legislative function on Jan. 6 by presiding over the counting of electoral college votes in Congress. The courts have long protected legislators from having to testify or provide information to the executive branch, which includes the Justice Department.

The decision is a very big one both politically and legally.

Politically speaking, Pence is hardly the first Trump ally or GOP elected official to resist a subpoena. (Stephen K. Bannon was ultimately sentenced to four months in prison for contempt of Congress, for refusing to cooperate with the House Jan. 6 committee.) Everyone who has faced testifying against Trump knows it comes with the prospect of a barrage of Trump attacks and may alienate the GOP base.

But the Pence case contains some unusual dynamics. In addition to any hard feelings inspired by Trump’s callous actions and his undoing much of the goodwill Pence built with the GOP base, Pence has a vested interest in making sure the party moves on from Trump in 2024. That’s because he’s obviously eyeing his own presidential run. To the extent the special counsel’s investigation produces some adverse result for Trump, that could further Pence’s political goals.

But nobody in Trump’s GOP wants to look like a snitch. And fighting the subpoena would seem to allow Pence to avoid being a central piece of an investigation he has, for the most part, avoided talking about — at least for now.

Pence has offered some criticisms of Trump with regard to Jan. 6 and even suggested at one point that he might consider testifying to the House Jan. 6 committee, though he ultimately said the committee had “no right to my testimony.”

At the time, Pence appeared to rest his argument on executive privilege — the idea being that his conversations with Trump were shielded. But now Pence appears to be focusing on a very different form of privilege enjoyed by the legislative branch.

And that’s where the big legal question comes in.

Vice presidents are unusual in that they are members of the executive branch, but the Constitution enumerates duties for them in the legislative branch. Mostly, this involves presiding over the Senate and breaking ties during votes, but it also includes overseeing the counting of electoral votes in Congress.

Unlike executive privilege, the Constitution explicitly grants privilege to legislators. The so-called speech or debate clause cites “Senators and Representatives” and states that “for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The question from there is whether this protects a vice president, and how much.

Legal experts say it’s quite possible — even likely — that the argument will succeed. But there are real questions about just how far the protection will extend — i.e. whether Pence would not have to testify at all, or whether it would only apply to specific things pertaining to his duties on Jan. 6 and Trump’s plot. For instance, Pence could be immune from answering questions about Trump’s effort to get him to help overturn the election in Congress on Jan. 6, but not about other efforts related to overturning the election.

And the legal wrangling ahead is likely have consequences beyond the Pence case, since it doesn’t appear that the courts have ever dealt with this specific question.

You’ll notice the text of the speech or debate clause applies to “Senators and Representatives.” So there is a real question about whether it applies to a vice president, who is neither.

Former Barack Obama White House counsel W. Neil Eggleston told Politico that makes Pence’s argument “completely frivolous.” And the Justice Department Office of Legal Counsel has said in the past that, despite a vice president’s “position as President of the Senate, he is certainly not one of its members.”

But the courts have previously extended this protection not just to elected members of Congress, but to their staffs. And in the 1968 case Gravel v. United States, the Supreme Court observed, “It is true that the Clause itself mentions only ‘Senators and Representatives,’ but prior cases have plainly not taken a literalistic approach in applying the privilege.”

This is among the issues dissected in a 2010 law review article on vice-presidential privilege written by former Republican Senate lawyer Roy Brownell. Another potential sticking point he highlighted: The speech or debate clause was intended to protect the legislative branch from the executive branch, but that this “protective rationale” might not apply since a vice president mostly serves in the executive branch.

Ultimately, Brownell concludes that vice presidents likely benefit from legislative privilege, even as it has yet to be officially tested.

But he also notes it could be limited.

“Of course, given the limited amount of time the modern Vice President spends presiding over the Senate, such a privilege would no doubt shield only a minor portion of the Vice President’s conversations and only a small amount of the material prepared for his review,” Brownell wrote.

And such privilege could be further limited if the testimony is connected to an underlying crime, argued Anthony Michael Kreis, an expert on the speech or debate clause at George State University.

“I think it is fair to say Pence’s theory of legislative immunity is not extraordinary or completely baseless,” Kreis said. “But there is a strong argument to be made that what happened in the run-up to Jan. 6 falls outside the ambit of the Constitution’s protection, because it was the executive branch attempting to do something that was both purely political in nature and unlawful.”

In 1975, a judge ruled that a congressman had to comply with a subpoena in a libel lawsuit because his relevant comments were political in nature, rather than legislative, and took place outside legislative chambers. Around the same, the Supreme Court ruled against Sen. William Proxmire’s (D-Wis.) claim of privilege to protect certain documents that were also deemed political rather than part of the legislative process.

Perhaps the most recent applicable case on the speech or debate clause, though, involves Sen. Lindsey O. Graham’s (R-S.C.). He fought a subpoena in the Fulton County, Ga., investigation into Trump and Jan. 6. Lower courts ruled Graham had to testify, but not about legislative activity including fact-finding investigations. The Supreme Court later denied Graham’s request to block the subpoena, ruling the lower-court protections were appropriate.

So assuming the courts find Pence is protected by the speech or debate clause — which, again, is untested — the question would be what it might allow him to avoid testifying about.

More immediately, though, it probably forces months of litigation at a time when Smith’s investigation appeared to nearing a conclusion. Usually you subpoena high-profile witnesses like Pence at the end of such a process, meaning Smith is now faced with deciding how hard to pursue Pence’s testimony.

And as it has been throughout the Trump era, sometimes the delay is the point — both legally and politically.