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More about Pence’s Lack of Principles
In yesterday’s edition of Civil Discourse, we explored the news that Trump’s lawyers plan to challenge the Special Counsel’s subpoena to Mike Pence on executive privilege grounds.
Now comes news that Pence, too, intends to challenge the subpoena, arguing that the Constitution’s “speech or debate” clause protects him from testifying. You might ask how the speech or debate clause, which applies to members of Congress, works for Pence. Here’s his answer: it applies because he was acting as the president of the Senate on January 6. Never mind that Mike Pence ducked testifying before the January 6 committee by claiming that he was part of the executive branch.
Maybe we’ll hear next about his role in the judiciary, although going for that trifecta would be more George Santos’s style.
Pence really doesn’t want to testify. He doesn’t want to testify under oath. When he finally does, he’ll have to answer questions truthfully—questions prosecutors pose to him—or expose himself to perjury charges. There is no suggestion in the public record that Mike Pence has any criminal exposure. It is more likely he doesn’t want to be the guy who brings Donald Trump down, because he thinks that would impact his own political future. But whatever the reason, Pence is trying as hard as he can to make sure he never sees the inside of a grand jury room.
This could be more of a threat to Jack Smith’s ability to get Pence’s testimony, not because the arguments are meritorious but because they are less settled and courts may feel obligated to seriously consider them. There is little, if any, law laying out the intersection of the speech or debate clause with the vice president’s role as president of the Senate. Litigation could take time, and now, past the two-year mark in the Biden administration, Smith doesn’t have a lot of it. He needs Pence’s testimony.
One possibility is that the investigation is not as far along as the subpoena to Pence led some folks to speculate it was. Perhaps Smith is headed in that direction, knows he will need Pence’s testimony down the road, and decided to issue the subpoena now to give it time to percolate through the courts.
Or perhaps he’s ready now. If so, there are strong arguments he can make, including an argument that this privilege, like others, can’t be used to shield Pence from testifying about Trump’s criminal conduct. There was reporting today that Smith has filed a motion that would force Trump’s attorney, Evan Corcoran, to testify, using this same rationale. It’s less clear how that argument works in the context of the speech or debate clause setting than it does with an attorney-client relationship, where it’s clear the privilege doesn’t shield advice sought in furtherance of criminal conduct. But it makes sense for it to apply. Members of Congress have the benefit of the speech or debate clause, not to benefit them personally or set them above the law that applies to everyone else, but because the Founding Fathers wanted them to be able to complete their legislative work free from undue interference by the executive branch. So there’s rich irony in seeing the vice president try to invoke it here.
South Carolina Senator Lindsey Graham tried to use the speech or debate clause argument to avoid testifying before Fulton County, Georgia, District Attorney Fani Willis’s grand jury. Graham, unlike Pence, is actually a member of the Senate, which means he has a far more colorable argument than Pence, who isn’t, for the application of the privilege. But it didn’t work out for him anyhow. A court ordered Graham to testify, while recognizing that some questions could be excluded if they fell within the confines of the privilege. In an unsigned one-page order, the Supreme Court declined to consider Graham’s request that they reverse the order that he testify.
In the Graham matter, the courts ruled that legislative investigative activity was protected, but that conversations about ways states could avoid election outcomes that favored Biden didn’t fall within his Senate work. There’s nothing to suggest prosecutors want to question Pence about activity the speech or debate clause might theoretically protect, if he was, in fact, a member of the Senate. They likely want to discuss Trump’s efforts to enlist Pence in the attempt to prevent certification of Biden’s electoral victory. Pence’s legal team may try to posture those conversations as abutting his role on January 6 as president of the Senate, but it’s an awfully tough sell for a federal bench that is displaying increasing weariness with Trump’s long-standing practice of making a mockery of the rule of law. Mike Pence, after all, was elected to the vice presidency, not to the Senate. So it’s possible that this matter could be decided as quickly as Graham’s was, freeing the special counsel to make Pence raise his right hand and swear it’s so within the next couple of months.
The bottom line is, the harder Pence fights testifying, the more it looks like there’s something important for him to testify about. Any prosecutor’s interest would be piqued.
For Pence to pretend this is a principled move to protect constitutional separation of powers is far-fetched. If he was serious about that, he wouldn’t have written a book and done public interviews to sell it. Principled would have been coming forward in advance of Jan. 6 to prevent what was about to happen. Principled would have been sharing what he knew with the country during impeachment. But refusing to tell Americans the truth about the president he served alongside two years down the road in order to protect himself and his career is tawdry. Pence’s effort to cloak himself in both executive privilege and legislative privilege, while leaving the country to fend for itself, offends the oath he took to serve.
This new strategy suggests that Pence may not fully appreciate who the special counsel and his top lieutenants are. Although Jack Smith has worked in a number of different positions at DOJ, he once ran its public integrity unit. He brought some of his friends from the unit over to the special counsel’s shop with him. Public integrity is a unit within DOJ’s criminal division that handles public corruption cases. Its prosecutors are aggressive, and never more so than when witnesses try to evade or mislead them. The office has faced criticism and even sanctions from courts, as it did following the prosecution of Alaska Senator Ted Stevens. Its cases do not always result in convictions—that happens when you’re pursuing the tough ones, although no prosecutor likes it. But the lawyers in public integrity are good prosecutors. They’ve had lots of institutional experience with difficult cases that backstops their work. They know the law, they know strategy, they know how to litigate questions like this and get the evidence they need. It seems very unlikely that they issued this subpoena without fully anticipating what Pence would try to sling back at them.
I still expect that Pence will testify.
We’re in this together,