A Quick Note on Mike Pence

I suppose it was too much to expect Mike Pence to grow a backbone and do the right thing by testifying before the grand jury without a protracted fight.

His lawyers reportedly intend to challenge the subpoena Jack Smith served on him on a novel ground—by claiming that the Speech and Debate clause of the Constitution protects from disclosure the conversations he had with ex-president Trump around violating his constitutional authority on January 6.

My quick take on this is, this argument is tricky enough that it will present an issue of first impression before the federal courts, meaning it will buy the delay he very much wants as it is litigated.

Whether he ultimately will succeed isn’t clear. On the one hand, the Speech and Debate clause applies pretty clearly only to Senators and Congressmembers. It states as follows:

“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

On the other hand, Pence will argue that he was performing a duty as a president of the Senate, and therefore the clause should protect him from having to tell a grand jury about his conversations with the former president around that duty.

The Speech and Debate clause is pretty iron clad, and the Department of Justice has argued (back in 2019 under Bill Barr) that its protections extend to the vice president. So it will be hard to backpedal from that. On the other hand, it shouldn’t be the case that conversations about an actual crime are completely exempt under that clause, just as the crime-fraud exception can operate to pierce the attorney-client privilege.

Pence didn’t have to raise this argument. He could have waived his right to assert that his conversations were protected, leaving only Trump to assert a much weaker Executive Privilege claim (weaker in part because he is no longer the holder of the privilege). What this tells us is that Pence is determined not to have to testify against Trump, likely because he knows what that will mean to the MAGA base who already aren’t too fond of him. (Recall what they were calling for on January 6 as they stormed the Capitol…)

But I have to give credit to Pence’s lawyers for asserting this defense. I didn’t think of it, and few experts I read expected it, so kudos to them for coming up with it. It does achieve delay and it does add a new wrinkle.

So deep breath. They are going to the mat to protect the former guy, and this is what we should come to expect.