Eager to avoid special counsel testimony, Pence makes flawed case

Former Vice President Mike Pence’s relevance to Jack Smith’s special counsel investigation is not in doubt. The Indiana Republican was not only hunted by Donald Trump’s radicalized followers during the insurrectionist attack on the Capitol, but Pence was also pressured by the former president to participate in an illegal scheme to overturn the 2020 election results.

For those investigating the Jan. 6 attack and Trump’s campaign to stay in power despite his defeat, Pence’s perspective is uniquely important. With this in mind, it didn’t come as too big a surprise when the former vice president received a subpoena from the special counsel’s office.

Pence soon after made clear that he had no intention of honoring the legal process. As NBC News reported, Smith seems disinclined to take no for an answer.

Time will tell whether the special counsel prevails — most legal experts seem to agree that the odds are in his favor — but while the process moves forward, it’s worth pausing to appreciate Pence’s explanation for why, exactly, he feels justified blowing off a federal subpoena.

“Let me first be clear: I’m going to fight the Biden DOJ subpoena for me to appear before the grand jury because I believe it’s unconstitutional and it’s unprecedented,” Pence told reporters last week. The Republican made related comments on Friday to NBC News’ Ali Vitali, saying, “The idea of subpoenaing a former vice president to testify in court against the president, with whom he served, I believe is unprecedented in American history. But as I said last week, I also think it’s unconstitutional.”

There are basically three elements to Pence’s case. Each of his points are woefully unpersuasive.

The first was his not-so-subtle reference to “the Biden DOJ subpoena.” The idea, evidently, is that he’s justified ignoring a legal directive because it was somehow sent indirectly from a Democratic White House.

This is not a serious objection. There is literally nothing to suggest any connection between the Oval Office and the special counsel’s office, and legitimate federal subpoenas do not become suggestions when partisans dislike the incumbent president and his/her party.

The second claim is that the subpoena is “unprecedented in American history.” This assertion at least has the benefit of technical accuracy, though it’s also entirely irrelevant. What difference does it make that Pence’s testimony would be historically unusual?

This came up quite a bit in the aftermath of the FBI executing a search warrant at Mar-a-Lago last summer, as Trump and his allies emphasized that such a move was “unprecedented.” Maybe so. But that didn’t help the suspect’s case: The truly unprecedented part of the story was a former president taking sensitive materials, refusing to give them back, and then allegedly taking steps to obstruct the retrieval process.

The same is true in this instance: Pence was subjected to unprecedented pressure to participate in an illegal scheme. The Jan. 6 attack was itself unprecedented. Would the former vice president’s testimony be historically unusual? Absolutely, but unprecedented developments are inevitable in the wake of unprecedented circumstances.

This isn’t Smith’s fault; it’s Trump’s. Former Judge J. Michael Luttig, a giant in conservative legal circles and a former advisor to Pence, wrote a New York Times opinion piece late last week that addressed this point directly: “ 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.”

But Pence’s third point — it’s “unconstitutional” to subpoena a former vice president — is the most substantive. It’s also the most legally dubious.

The Republican’s apparent pitch is that he was effectively a member of Congress — the vice president is the president of the Senate — which means he’s eligible to legal protections under the Constitution’s “speech or debate” clause. Generally speaking, this is a provision that says what lawmakers say as part of their legislative duties can’t be questioned in legal proceedings.

But Luttig concluded that this, too, is a tough sell: “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 communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States.”

So what happens now? My MSNBC colleague Jordan Rubin added, “Though the ex-judge made a decent case, it remains to be seen whether current judges, including the Republican-dominated Supreme Court, reach the same conclusion if it gets that far.” Watch this space.