Mike Pence's Immunity Claim Sure Seems Frivolous

[LetMyPeopleVote]

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.

[gab13by13]

1. Whatever, Pence won't have to testify for 6-8 months,

this will go to the Supreme Court.