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…
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