J. Michael Luttig, the conservative former judge who famously advised Mike Pence that he couldn’t throw the 2020 election for Donald Trump, has been trying to convince Pence that he can’t get out of testifying in special counsel Jack Smith’s probe.
Or he’s at least trying to convince everyone else of that argument.
Last week, I noted that Luttig, who was appointed to the bench by President George H.W. Bush, took Pence to task in a Twitter thread, critiquing the former vice president’s reported plan to use the Constitution’s “speech or debate” protections to avoid the special counsel’s probe.
Pence’s plan is suspect because those protections apply to members of Congress, which Pence wasn’t on Jan. 6. However, because the vice president technically presides over the Senate, Pence wants to claim those protections to avoid testifying.
Luttig, who doesn’t think much of that plan, has now taken to The New York Times to speak out against Pence’s “gambit,” as he called it (and as I called it previously). He wrote there on Friday:
Inasmuch as Mr. Pence’s claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country’s history where it was thought imperative for someone in a vice president’s position, or his lawyer, to conjure the argument. In other words, Mr. Pence’s claim is the proverbial invention of the mother of necessity if ever there was one.
Importantly, Luttig pointed out that whatever protections Pence has are limited. He went on:
Any protections the former vice president is entitled to under the “speech and debate” clause will be few in number and limited in scope. There are relatively few circumstances in which a former vice president would be entitled to constitutional protection for his conversations related to his ceremonial and ministerial roles of presiding over the electoral vote count. What Mr. Smith wants to know about are Mr. Pence’s…
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