(Feb. 15)  Former Vice President Mike Pence is usually a serious man, but his latest reported legal gambit is laughably fatuous.

If the reports are true that Pence plans to fight a subpoena by claiming immunity due to the Constitution’s “speech or debate clause,” then he is engaged in cheap grandstanding.

Special counsel Jack Smith’s subpoena demands Pence’s testimony before a grand jury that is examining former President Donald Trump’s effort to overrule the 2020 presidential election’s results. Pence reportedly will hide behind this clause from Article I, Section 5 of the Constitution, relating specifically to “Senators and Representatives”: “For any speech or debate in either House, they shall not be questioned in any other place.”

There are two parts to Pence’s apparent legal claim, both of which are absurd. First, Pence reportedly will claim that because the vice president presides over the Senate, this gives him status as a senator. This is nonsense. The vice president is part of the executive branch and has no legislative powers — it merely has parliamentary oversight and the ability to break ties. As noted by the Brookings Institution’s Benjamin Wittes, Pence already fought a congressional inquiry on the basis that Congress can’t compel his testimony as a member of the executive branch. How can he now say the executive branch (prosecutors) can’t compel his testimony because he is a legislator?

Second, Pence must convince a judge that the “speech or debate clause” is applicable to whatever specific information the grand jury seeks. Again, poppycock. Even if the vice president actually is a senator and thus protected by the clause, which he isn’t, the clause won’t protect him. The clause isn’t a generic “get out of jail” card, much less a “get out of testifying” allowance for just any reason.

The clause protects a congressman’s right to debate and freely conduct legislative business related to floor debates. But the grand jury presumably wants to ask Pence about executive branch discussions he had with Trump about negating election results…. [The full column is here.]



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