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How a Pence gambit to avoid testifying could work — or at least delay

Former Vice President Mike Pence reportedly will invoke the Constitution’s “speech or debate” clause, even though he was not a member of Congress on Jan. 6.


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, the open legal questions surrounding the clause could at least delay his testimony before Smith’s grand jury, even if he ultimately loses the litigation over the scope of those protections.

So the practical upshot, of course, is that open legal questions can mean extensive litigation, even if Pence loses.

Recall that Sen. Lindsey Graham of South Carolina — an actual member of Congress — raised the “speech or debate” argument while trying to avoid testifying before Fulton County District Attorney Fani Willis’ special grand jury in Georgia. The Supreme Court rejected the Republican senator’s bid in November, and he eventually had to testify. But the justices emphasized that Graham’s testimony would be limited to matters outside of what he claimed were legislative activities protected by “speech or debate.” Pence’s testimony could also potentially be cabined in some way, even if he doesn’t win outright, and the success of his claim could also depend on the extent to which courts find that the Jan. 6 congressional session, and the vice president’s role in it, counted as a legislative matter.

So the practical upshot, of course, is that open legal questions can mean extensive litigation, even if Pence loses. So he seems to be taking a page out of the Trump playbook, in service of the man who effectively condoned calls for his extrajudicial execution at the hands of insurrectionists on Jan. 6 for following the law.