• Show Notes

Dear Reader,

Whatever you might think of Donald Trump, you have to hand him this: he makes the most far-fetched law school hypotheticals come to life.

This time, Trump’s actions on and around January 6 have given us this doozy: Mike Pence is seeking to quash a federal grand jury subpoena from Special Counsel Jack Smith by invoking the Constitution’s delightfully obscure “Speech or Debate” Clause. No prior vice president has ever made a comparable claim, or perhaps even considered it; yet Pence actually could be on to something here. 

Today’s featured Constitutional provision certainly does need some introduction. The Speech or Debate Clause holds prime real estate on our seminal parchment, right there in Article I, though you have to skim down to Section 6 to find it. It’s heavy on the old-timey language, but the key phrase comes right at the end: “for any Speech or Debate in either House, they [U.S. Senators and Representatives] shall not be questioned in any other place.” In other words, members of Congress cannot be forced to testify, by subpoena or otherwise, outside of Congress itself – at least on certain topics, as we’ll discuss in a moment. It’s fundamentally a separation-of-powers device intended to insulate (and elevate) Congress.

We’ve got two pertinent questions as to Pence. First, does he even count? 

The Speech or Debate Clause specifies that it applies to “Senators and Representatives.” Pence’s argument is that, as vice president, he also served (pursuant to Article I, Section 3 of the Constitution) as president of the Senate. An eagle-eyed strict constructionist might respond that Pence was not technically a “Senator” or a “Representative.” On the other hand, the Supreme Court has construed the Clause broadly to include not only elected officials but also their staffers. If it can apply to a summer intern, the reasoning goes, then it should apply to the Senate president as well. And Pence might argue that, as Senate president, he had the power to vote, just like any Senator. This is why, for example, Democrats held the Senate majority during the first two years of the Biden administration; while the Senate was split 50-50, Vice President Kamala Harris held (and at times cast) that tiebreaking 101st vote. (Pence, too, cast several tie-breaking Senate votes when he was VP.)

It’s become a bit of a trendy “sick burn,” as the kids say, to note that Pence has claimed he was part of the Executive Branch (as vice president) when he previously invoked executive privilege, but now claims he was part of the Legislative Branch (as president of the Senate) when it comes to the Speech or Debate Clause. But there’s really nothing to this snappy Twitter quip; the answer, obviously, is that the Constitution specifically assigns to the vice president (and only the vice president) precisely such a dual role. This isn’t fairly a “Well, which one is it, Mike?” scenario. He was both. 

If Pence does qualify – and I think the courts likely will conclude that he does – then we get into a trickier question: are his communications protected? The Clause does not apply to any and all testimony, but rather only to testimony about legislative activities. So, for example, if a Senator happened to witness a mugging on the street, she could of course be subpoenaed as a witness; the testimony would have nothing to do with the work of Congress. Or, more pertinent here, if a member of Congress was part of communications about illegal or other illicit activity outside of his legitimate legislative duties, then that too could be in play.

To that point, Pence has claimed publicly that, “On the day of January 6, I was acting as President of the Senate, presiding over a Joint Session, described in the Constitution itself.” Therefore, Pence seemingly will argue in court, his conversations on and perhaps before that day related squarely to his legislative responsibilities. Prosecutors surely will counter that, to the extent Trump or others pressured Pence to act illegally and to unilaterally throw out electoral votes, that falls outside the scope of legitimate job functions, and would not be protected by the Speech or Debate Clause. 

Prosecutors also surely will note that, even if Pence could otherwise seek refuge behind the Clause, he has waived its protections because he has written in his book about some of his relevant conversations with Trump. It’s a commonsense legal premise; if a person has the right to keep something secret, but then blabs about it in public, he has given away that right. Pence might respond that, while a person can waive an ordinary privilege, this is a Constitutional mandate. But, on the other hand, a person certainly can waive his Constitutional rights in certain circumstances. (There also could be certain conversations that Pence did not write about, for which he has not waived any Constitutional protection.)

The recent case of Senator Lindsey Graham is instructive here. He invoked the Speech or Debate Clause in response to a grand jury subpoena from the Fulton County District Attorney. In the end, Graham got a mixed result: the Eleventh Circuit Court of Appeals ruled that he could not dodge the subpoena altogether, and that he had to testify – but only about those subjects that fell outside his legitimate legislative scope. So while some of Graham’s testimony could be shielded by the Speech or Debate Clause, the court noted pointedly that much of it – about coordination with Trump’s campaign or efforts to pressure local officials, for example – would not receive protection. 

I suspect we will ultimately see a similar outcome for Pence. He likely won’t defeat the Special Counsel’s subpoena altogether. But he also will be able to invoke the Speech or Debate Clause to avoid testifying about matters squarely within his legitimate duties as president of the Senate, including conversations about the scope of his Constitutional authority (or lack of authority, such as it is) to discard electoral votes. But anything that falls beyond those boundaries – discussions about criminal acts, for example – should be in play.   

We are sure to see other skirmishes break out over Speech or Debate. We already know, for example, that prosecutors have subpoenaed the phone of Rep. Scott Perry, who will raise a Speech or Debate argument that tracks with Pence’s claim (minus any dispute about whether Perry, a member of the House, qualifies for coverage, because he surely does). The same dance could play out if the Special Counsel seeks evidence from Speaker Kevin McCarthy, Rep. Jim Jordan, or other members of Congress who spoke with Trump on January 6. 

The conundrum for the Special Counsel is this: at what cost? Regular readers of this column are already well familiar with my views on Attorney General Merrick Garland’s dereliction of duty by inaction; I argued back in May 2022 that Garland already had taken too long and had squandered his best chance to indict and convict Trump. Now it’s nine months later and, still, DOJ has not charged a single person in or near any position of official power. 

This isn’t Jack Smith’s fault. He has only been Special Counsel for four months now and, by all indications, he has picked up the investigation’s pace and aggressiveness. But if he wants to fight this battle with Pence (or Perry, or others), then those fights inevitably will take months. The cases will start in the federal district court, and then the loser has a right to go to the court of appeals. Whoever loses there can ask the Supreme Court to take the case. Even in an expedited scenario, that process will take four months, minimum, and likely more. 

Garland might have had enough time to wage these battles had he subpoenaed Pence and other high-level insiders back in, say, late 2021. There’s zero reason he couldn’t have done just that; it’s not as if there was any mystery about the involvement of Pence and other well-positioned heavy hitters. Yet he failed, and now time is perilously short for Smith. 

Stay Informed,


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