I recently explained why executive privilege shouldn’t keep Mike Pence from testifying to special counsel Jack Smith’s grand jury.
But Pence’s legal team reportedly is putting a different legal gambit in play that, while also dubious, could throw a wrench into the Justice Department’s plans: the “speech or debate” clause. That clause is in Article 1, Section 6, of the Constitution and states in part:
The Senators and Representatives … for any Speech or Debate in either House … shall not be questioned in any other Place.
You’ll notice that the clause doesn’t mention vice presidents. So how could it help Pence?
Well, that’s because the vice president presides over the Senate in certifying the presidential election. That’s relevant here because Donald Trump’s pressure campaign to stay in the White House despite losing the 2020 election was launched against the backdrop of hoping that Pence, in his technical congressional role on Jan. 6, could make that happen.
According to Politico, which first reported on Pence’s legal plans Tuesday:
“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said one of the two people familiar with Pence’s thinking, who spoke on condition of anonymity to discuss his legal strategy. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”
Such feelings are difficult to believe from the man who just got all misty-eyed about separation of powers in the other direction, claiming that Congress had no right to his Jan. 6 testimony as vice president. (And I have to point out that even if it doesn’t bind Pence legally, GOP election deniers who sued Pence over Jan. 6, represented by election denier Sidney Powell, argued in a rejected lawsuit at the Supreme Court that Pence wasn’t protected by “speech or debate.”)
But even if Pence is being disingenuous,…
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