Pence is set to argue that his former role as president of the Senate protects him from Subpoena

[LetMyPeopleVote]

Pence is set to argue that his former role as president of the Senate — therefore a member of the legislative branch — shields him from certain Justice Department demand

The speech and debate clause did not protect Lindsey Graham in the Georgia subpoena case.

Link to tweet

https://www.politico.com/news/2023/02/14/pence-subpoena-trump-election-00082637

Pence is set to argue that his former role as president of the Senate — therefore a member of the legislative branch — shields him from certain Justice Department demands.

Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the “speech or debate” clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.

“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.”

Pence’s planned argument comes after an FBI search that followed his attorney’s voluntary report of classified material in his possession last month — drawing him into a thicket of document-handling drama that’s also ensnared Trump and President Joe Biden. While Pence aides say he’s taking this position to defend a separation of powers principle, it will allow him to avoid being seen as cooperating with a probe that is politically damaging to Trump, who remains the leading figure in the Republican Party.

[milestogo]

1. Wimp.

[Walleye]

2. He feels duty bound to cover his ass even if it destroys our democracy

[Irish_Dem]

3. Being an elected GOP official gives them a protective shield for life.

[spanone]

4. delay, delay, delay.

[LuckyCharms]

5. Or, you could just comply with the subpoena, fucker.

[mcar]

6. Delay, delay, delay

[Arazi]

7. It's a valid argument...

… that he didn’t need to bring.

Definitely stalling.

Pence doesn’t yet realize that #Traitor and his cult will never love him? 🤔

[LetMyPeopleVote]

8. Even Cheney did not try to use this defense

From the article cited in OP

Even when Dick Cheney sought to expand the powers of the vice presidency to a historically unprecedented degree — triggering numerous court battles — he never formally invoked the protection, Brownell noted.

This defense did not prevent Lindsey Graham from having to testify

Some experts pointed to the recent 11th Circuit Court of Appeals decision that paved the way for Sen. Lindsey Graham (R-S.C.) to testify to local investigators in Georgia — who are also probing Trump’s effort to subvert the election. Graham initially protested, contending the “speech or debate” protection should shield him from testifying at all.

But the circuit ruled that Graham could be compelled to testify so long as investigators steered their questions away from anything involving his legislative responsibilities. The Supreme Court declined to step in.

Pence may ultimately land in the same place, but it’s unclear which aspects of his involvement in the Jan. 6 session of Congress would fall outside of his official duties. High-level Trump administration witnesses, as they warned the then-president not to pressure Pence over how he counted electoral votes, made clear they viewed him as occupying a uniquely legislative role on Jan. 6.

This will be an interesting fight but the fact that this testimony is needed for a criminal investigation should control just as in the Nixon case on executive privilege

[Jarqui]

9. How did that work out for Spiro Agnew ? ... nt

[Liberal In Texas]

10. Weasel.

More GQP abusing the courts.

[Freethinker65]

11. Or, He could be honorable and testify under oath to possibly aid in preventing a reoccurrence.

Nope. He is going to protect Trump and his fellow GOP Trump backing sycophants, and try to keep any GOP creds he still has.

To think, Hillary testified for over 9 hours in public, while these sniveling cowardly males get to refuse and delay.

[Emile]

12. The clown show continues to deny justice.

[jalan48]

13. How long will this delay the the process?

[LetMyPeopleVote]

16. TFG was going to assert Executive Privilege and this will be an additional issue

There was going to be litigation over the executive privilege issue that TFG was going to assert. The DC court has evidently already rejected the executive privilege claim for a number of witnesses. This claim is unique and there may be some interest but this litigation will be under seal.

There will likely be some additional delay but it is not clear how much additional delay

[jalan48]

24. Thanks for explanation- Pence is obviously in on the delay strategy.

[chicoescuela]

14. Arrest this POS

[llmart]

15. He'd just plead the fifth a gazillion times anyway.

Just like his criminal boss does.

[LetMyPeopleVote]

18. Pence is not the subject/target of Special Counsel Smith's probe

Pence is not going to assert the 5th

[samsingh]

17. i think he has a lot of corruption to hide. The traitorous coward.

[kentuck]

19. Screw that traitorous MF'er!

Time to play hardball with Mr Pence.

[LetMyPeopleVote]

20. This 1973 legal opinion is interesting

Link to tweet

[badhair77]

21. He really doesn't want to testify, does he.

Further proving he is not presidential material. Weasel.

[2naSalit]

22. Wrong, mike.

NOBODY is above the law. We'll get you and your stupid dog too.

[melm00se]

23. The Courts might side

with Pence if the questions are targeting him and his actions when he was acting as President of the Senate. If the questions fall outside that scope he will not have that protection.

[LetMyPeopleVote]

25. Andrew Weisman-Interesting thread on Pence legal argument Re Jack Smith subpoena.

This is a good thread on this issue

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

Link to tweet

[LetMyPeopleVote]

26. The US Constitution speech and debate clause did not help Lindsey Graham

Link to tweet

[LetMyPeopleVote]

27. Mike Pence's Immunity Claim Sure Seems Frivolous

According to this conservative scholar/federalist society lawyer, Pence's arguments are frivolous and should not hold up in court.

Link to tweet

Link to tweet

https://www.nationalreview.com/2023/02/mike-pences-immunity-claim-sure-seems-frivolous/

By its plain text, the speech-or-debate clause (U.S. Const., art. I, § 6, cl. 1) applies only to “The Senators and Representatives” of the legislative branch created by Article I. The vice president is an executive officer under Article II. True, the vice president is made the “President of the Senate” (in art. I, § 3, cl. 4). But that does not make the vice president a senator, which (besides representatives) is what the speech-or-debate clause applies to.

The limited protection prescribed by the speech-or-debate clause also shows that it does not apply to vice presidents. The clause says that “the Senators and Representatives” “shall not be questioned in any other Place” [i.e., other than in Congress] “for any Speech or Debate in either House.” The vice president does not speak or debate, much less propose bills or otherwise legislate. Indeed, even in the role of president of the Senate, the vice president merely breaks the rare tie when the chamber is deadlocked — a power of marginal legislative value, at best, since as a practical matter the vice president exercises it in accordance with the wishes of the president, the chief executive.

Even for the senators and representatives textually covered by the speech-or-debate clause, its immunity is limited. I elaborated on this last fall, when Senator Lindsey Graham tried to assert speech-or-debate immunity to avoid testifying in the Fulton County state grand jury that is investigating Trump’s efforts to reverse Georgia’s 2020 presidential election. In rejecting Graham’s claim, the Eleventh Circuit federal appeals court observed that the protection applies to “Members of Congress” and that the Supreme Court had “warned” that it should not be “extend[ed] . . . beyond its intended scope, its literal language, and its history[.]” The court added that the immunity the clause confers does not “extend[] beyond the legislative sphere” — an ambit limited to activities that take place “in a session of Congress by one of its members in relation to business before it.”

Obviously, the special counsel wants to question Pence about meetings he had with President Trump, Trump advisers, and executive officials regarding the pressure Trump was applying to Pence to derail the counting of state-certified electoral votes at the January 6 joint session of Congress. Again, Pence was not a member of Congress but an executive official, and the pertinent conversations were among executive officials, some of whom were trying to thwart congressional business. Given the Supreme Court’s admonition against expanding speech-and-debate immunity to novel circumstances, we can be confident that the judiciary is not going to extend it to the vice president or to executive actions in anticipation of a congressional session, rather than to legislative actions....

Pence appears to be laying the groundwork to explain to Republican voters that he took extraordinary measures to try to avoid testifying. I suspect this will backfire: Pence’s credibility will take a hit for taking an untenable legal position, he will lose support from people who admire his refusal to buckle under Trump’s pressure on January 6, and he will get no love from Trump’s base — which will remember only that he testified, not that he tried not to.

[H2O Man]

28. Recommended.

Older folks here will recall Dick Cheney attempted to argue the same thing.