Excellent analysis. My own wonder is whether the judge threw Pence the bone of the speech and debate clause issue in order to a) limit the attractiveness of appeals. It is clear that executive privilege is going nowhere in the courts, and you can't appeal a point you asked for. and b) to keep the supremes from getting their grubby hands on this new take on speech and debate. After all, the only argument that can be made on appeal from the judge's ruling is that the clause does indeed protect you from talking about people urging clearly illegal acts.
I believe the judge actually got the law exactly right in this case, following a similar ruling in the 11th circuit against Lindsey Graham. There is such a right under the Speech or Debate clause, and for a limited time and in a limited way Pence is entitled to it…when acting as president of the Senate in a ceremonial role. Anything beyond that isn’t entitled to that privilege. So it becomes a very narrow one.
I agree. The bone he gave was the idea that as a VP Pence was entitled to the defense at all.
It was, as far as I can tell, the only argument remotely of first impression. I saw pundit types make arguments about why Pence wouldn't be. If the judge had bought those, appeal would have been much more likely.
The most interesting question for me is whether Meadows will invoke his 5th amendment right against self-incrimination and, if so, whether the Special Counsel will immunize Meadows or try to use the testimony of others to build a case against Meadows and force him to cooperate. Jay, what do you think happens re: Meadows?
That is the question on many minds. We haven’t heard much from Meadow publicly. He hasn’t been out saying much, which has led many to believe he is angling for some kind of immunity in exchange for leniency. If I were Meadows, that’s what I would want; I would not want to go down with the U.S.S. Trump if I could help it. But like Pence, Meadows needs to give the appearance that he is being forced to betray Trump, because look what happens to those like Michael Cohen who are viewed as active betrayers of Trump.
I’m no legal expert, but based on what we know about Smith, I don’t think we would take that off the table. He’s going big to get to Trump and I think he would find it worth it to give immunity to someone like Meadows. Especially because there are other crimes they could get Meadows for, namely voter fraud.
I think Meadows is a slimey hypocrite who is guilty as hell! I don't want him to get any immunity ! He has been in cahoots with dumpster from the get go !!
Questions: Who is paying Pence's lawyers? And, how much would you estimate would be the cost of these protracted legal maneuvers on Pence's behalf, Jay?
Also, Pence has no constituency. He is heartily disliked by (thinking out loud) MAGA's, "moderate" R's, D's and Independents. Did I miss anyone?
I don’t think it is known who is paying them, or whether this is coming out of come war chest or even RNC fund (which I doubt). Pence probably has the wherewithal to finance his legal representation himself.
Pence is being represented by Emmet Flood, a partner at the Williams & Connolly law firm, possibly the most preeminent in Washington. Partners there with his experience charge at least $1500 per hour. https://www.wc.com/Attorneys/Emmet-T-Flood
Mike Pence does not seem to perceive his own situation clearly, or else his hopes are cheating him.
The MAGA world hates him. They were ready to kill him. Nothing that he can do or say is going to change that, but he is still behaving as though it's possible because in order to become president now that is what it would take. That's going to be "a long time waiting for a train don't come."
"First, the privilege belongs chiefly to the sitting executive. That person is no longer Donald Trump but the current president, Joe Biden." The argument being made by the MAGA world is that Trump still IS the legitimate sitting executive and therefore is immune. Of course we all know that it isn't true, but they don't. Just who are they blaming for that I wonder....hmmm?
*edit: and Mike Pence is a pariah in his old district for not helping Trump hinder the election. Living minutes from his former territory in Indiana, I think he would struggle to win an unopposed election for dog-catcher.
I hope that indictments follow all this because lack of consequences for trump and minions after all this will only serve to embolden them and future dictator-wanna-be’s.
This is the point I try to make for those who say indicting him would only strengthen him. No. Failing to indict him will only embolden him further. We’ve already seen what lack of a conviction after impeachment did.
The plot thickens and the noose tightens, let's see who escapes and who talks ... Thanks for the insights Jay - you do a great job of explaining the workings of the law.
This was eye opening, and clearly explained, but as a commoner, my question is this: Can each of these persons merely claim the 5th and not say anything? If so, what then?
Yes, they absolutely can. Remember that the 5th is not going to be some magic balm. Most defendants are convicted without ever testifying in their own defense, which is generally a terrible idea. Trump, for example, could be convicted for conspiring to obstruct the electoral count based on what Mike Pence, Ivanka, and his own attorneys testify about what he tried to do. Mark Meadows could be convicted based on messages he sent to people and things he said to his assistant, or to others in the White House, about his plans to organize fake sets of electors in the various battleground states. Most convictions arrive based on the written and physical evidence, testimony from others, and circumstantial evidence, not from a confession by the defendant.
To follow up on Jay's response, a prosecutor can grant immunity to a witness who invokes the 5th amendment. In the federal system, immunity protects the witness from having the prosecution use their statements or any evidence discovered from their statements against them. (In certain states, a prosecutor can grant what is called transactional immunity, which prohibits prosecuting the witness on the transactions in question even if the prosecution is based on evidence other than the witness' own statements).
The immunized witness can still be prosecuted for perjury if he or she lies under oath. And if the witness refuses to answer questions despite being immunized, the prosecutor could move to hold the witness in contempt, which could result in jail time.
Immunizing a witness is a difficult decision and is dependent on a number of factors. For instance, you generally would not want to immunize someone higher up on the chain of responsibility to go after someone less culpable. Nor would you feel the need to immunize someone if you think you can build a case against them and then use the criminal charges or threatened charges to get them to plead guilty and cooperate in the hopes of a lesser sentence. However, the witness could have leverage to hold out for immunity if, for instance, he or she is the only person with significant evidence -- i.e. the only person who spoke alone with the President on January 6 about criminal matters. Hope this helps.
Since the only time that Pence will ever be president has already happened ( ceremonial on Jan6 ) he should count himself lucky and cooperate with the courts ! That being said I believe that is his only recourse . For him to claim executive privileges now after writing a book for monetary gains just shows his hypocrisy. As far as I'm concerned he knew or should have known dumpster 's plan and should have gone to the DOJ with his suspicions (he contacted previous lawyers and/or judge for info ) so he knew there was something going on ! He is already proving that he is already a spinless weak assed man and can't use "I'm a Christian man " to help save dumpster ! If he wanted to be known as a God fearing man who does the right and decent thing then he should testify against dumpster and the rest of the repugnants who were involved.... that is his only way ! I don't see it happening but if he ever gave a damn about the people or the country maybe he will .
thanks. I still haven't figured out how to give you a one time donation of less than 65 dollars (or whatever that limit is. And I would like to. Please make it easier for those of us that can't afford to pay monthly to help out!
Thank you for asking! You can PayPal me any amount directly if you prefer. My PayPal is nycjayjay@gmail.com, and I deeply appreciate the donations I have received from readers!
Jay, my question for you (and Substack) is the same as Mimi B's, and I will make a small donation. Can you (and others who are making money for Substack as well as yourselves) ask Substack for a link to an easy way to make a small donation, not necessarily by PayPal?
Can’t he just take the 5th if his appeals don’t work? You know Meadows will because he would definitely incriminate himself. Pence is sanctimonious. He’ll cover himself in constitutional rights.
As much as Pence wants to get the MAGA vote, which he will never do anyway, more than anything he doesn't want to go to prison himself. So far, it appears that he has avoided personal involvement in the whole sordid mess. However, I doubt the MAGAs are going to accept him no matter what he does. After all, he is the one they built the gallows for. He is the one they were roaming the halls of the Capitol building looking for.
Excellent analysis. My own wonder is whether the judge threw Pence the bone of the speech and debate clause issue in order to a) limit the attractiveness of appeals. It is clear that executive privilege is going nowhere in the courts, and you can't appeal a point you asked for. and b) to keep the supremes from getting their grubby hands on this new take on speech and debate. After all, the only argument that can be made on appeal from the judge's ruling is that the clause does indeed protect you from talking about people urging clearly illegal acts.
I believe the judge actually got the law exactly right in this case, following a similar ruling in the 11th circuit against Lindsey Graham. There is such a right under the Speech or Debate clause, and for a limited time and in a limited way Pence is entitled to it…when acting as president of the Senate in a ceremonial role. Anything beyond that isn’t entitled to that privilege. So it becomes a very narrow one.
I agree. The bone he gave was the idea that as a VP Pence was entitled to the defense at all.
It was, as far as I can tell, the only argument remotely of first impression. I saw pundit types make arguments about why Pence wouldn't be. If the judge had bought those, appeal would have been much more likely.
The most interesting question for me is whether Meadows will invoke his 5th amendment right against self-incrimination and, if so, whether the Special Counsel will immunize Meadows or try to use the testimony of others to build a case against Meadows and force him to cooperate. Jay, what do you think happens re: Meadows?
That is the question on many minds. We haven’t heard much from Meadow publicly. He hasn’t been out saying much, which has led many to believe he is angling for some kind of immunity in exchange for leniency. If I were Meadows, that’s what I would want; I would not want to go down with the U.S.S. Trump if I could help it. But like Pence, Meadows needs to give the appearance that he is being forced to betray Trump, because look what happens to those like Michael Cohen who are viewed as active betrayers of Trump.
I’m no legal expert, but based on what we know about Smith, I don’t think we would take that off the table. He’s going big to get to Trump and I think he would find it worth it to give immunity to someone like Meadows. Especially because there are other crimes they could get Meadows for, namely voter fraud.
I think Meadows is a slimey hypocrite who is guilty as hell! I don't want him to get any immunity ! He has been in cahoots with dumpster from the get go !!
Agree 💯!!!
Questions: Who is paying Pence's lawyers? And, how much would you estimate would be the cost of these protracted legal maneuvers on Pence's behalf, Jay?
Also, Pence has no constituency. He is heartily disliked by (thinking out loud) MAGA's, "moderate" R's, D's and Independents. Did I miss anyone?
I don’t think it is known who is paying them, or whether this is coming out of come war chest or even RNC fund (which I doubt). Pence probably has the wherewithal to finance his legal representation himself.
Thanks very much, Jay.
Another question: How did Pence make his money?
Pence is being represented by Emmet Flood, a partner at the Williams & Connolly law firm, possibly the most preeminent in Washington. Partners there with his experience charge at least $1500 per hour. https://www.wc.com/Attorneys/Emmet-T-Flood
Hmmmmm...
Mike Pence does not seem to perceive his own situation clearly, or else his hopes are cheating him.
The MAGA world hates him. They were ready to kill him. Nothing that he can do or say is going to change that, but he is still behaving as though it's possible because in order to become president now that is what it would take. That's going to be "a long time waiting for a train don't come."
"First, the privilege belongs chiefly to the sitting executive. That person is no longer Donald Trump but the current president, Joe Biden." The argument being made by the MAGA world is that Trump still IS the legitimate sitting executive and therefore is immune. Of course we all know that it isn't true, but they don't. Just who are they blaming for that I wonder....hmmm?
And yet, Trump is (depressingly, maddeningly) still Lord and Savior in SW Ohio.
*edit: and Mike Pence is a pariah in his old district for not helping Trump hinder the election. Living minutes from his former territory in Indiana, I think he would struggle to win an unopposed election for dog-catcher.
I hope that indictments follow all this because lack of consequences for trump and minions after all this will only serve to embolden them and future dictator-wanna-be’s.
This is the point I try to make for those who say indicting him would only strengthen him. No. Failing to indict him will only embolden him further. We’ve already seen what lack of a conviction after impeachment did.
I thought about the impeachments when I wrote the comment. I think he really concluded laws do not apply to him after that!
Yes, Jay!!!
Plus, if he had been indicted and convicted promptly of his attempted coup / sedition, he would be barred constitutionally from running for president.
The plot thickens and the noose tightens, let's see who escapes and who talks ... Thanks for the insights Jay - you do a great job of explaining the workings of the law.
This was eye opening, and clearly explained, but as a commoner, my question is this: Can each of these persons merely claim the 5th and not say anything? If so, what then?
Yes, they absolutely can. Remember that the 5th is not going to be some magic balm. Most defendants are convicted without ever testifying in their own defense, which is generally a terrible idea. Trump, for example, could be convicted for conspiring to obstruct the electoral count based on what Mike Pence, Ivanka, and his own attorneys testify about what he tried to do. Mark Meadows could be convicted based on messages he sent to people and things he said to his assistant, or to others in the White House, about his plans to organize fake sets of electors in the various battleground states. Most convictions arrive based on the written and physical evidence, testimony from others, and circumstantial evidence, not from a confession by the defendant.
To follow up on Jay's response, a prosecutor can grant immunity to a witness who invokes the 5th amendment. In the federal system, immunity protects the witness from having the prosecution use their statements or any evidence discovered from their statements against them. (In certain states, a prosecutor can grant what is called transactional immunity, which prohibits prosecuting the witness on the transactions in question even if the prosecution is based on evidence other than the witness' own statements).
The immunized witness can still be prosecuted for perjury if he or she lies under oath. And if the witness refuses to answer questions despite being immunized, the prosecutor could move to hold the witness in contempt, which could result in jail time.
Immunizing a witness is a difficult decision and is dependent on a number of factors. For instance, you generally would not want to immunize someone higher up on the chain of responsibility to go after someone less culpable. Nor would you feel the need to immunize someone if you think you can build a case against them and then use the criminal charges or threatened charges to get them to plead guilty and cooperate in the hopes of a lesser sentence. However, the witness could have leverage to hold out for immunity if, for instance, he or she is the only person with significant evidence -- i.e. the only person who spoke alone with the President on January 6 about criminal matters. Hope this helps.
Since the only time that Pence will ever be president has already happened ( ceremonial on Jan6 ) he should count himself lucky and cooperate with the courts ! That being said I believe that is his only recourse . For him to claim executive privileges now after writing a book for monetary gains just shows his hypocrisy. As far as I'm concerned he knew or should have known dumpster 's plan and should have gone to the DOJ with his suspicions (he contacted previous lawyers and/or judge for info ) so he knew there was something going on ! He is already proving that he is already a spinless weak assed man and can't use "I'm a Christian man " to help save dumpster ! If he wanted to be known as a God fearing man who does the right and decent thing then he should testify against dumpster and the rest of the repugnants who were involved.... that is his only way ! I don't see it happening but if he ever gave a damn about the people or the country maybe he will .
thanks. I still haven't figured out how to give you a one time donation of less than 65 dollars (or whatever that limit is. And I would like to. Please make it easier for those of us that can't afford to pay monthly to help out!
Thank you for asking! You can PayPal me any amount directly if you prefer. My PayPal is nycjayjay@gmail.com, and I deeply appreciate the donations I have received from readers!
Jay, my question for you (and Substack) is the same as Mimi B's, and I will make a small donation. Can you (and others who are making money for Substack as well as yourselves) ask Substack for a link to an easy way to make a small donation, not necessarily by PayPal?
Yeah, try to stay away from PayPal. It's owned by Peter Theil, and we want him to suffer almost as much as trump
Can’t he just take the 5th if his appeals don’t work? You know Meadows will because he would definitely incriminate himself. Pence is sanctimonious. He’ll cover himself in constitutional rights.
As much as Pence wants to get the MAGA vote, which he will never do anyway, more than anything he doesn't want to go to prison himself. So far, it appears that he has avoided personal involvement in the whole sordid mess. However, I doubt the MAGAs are going to accept him no matter what he does. After all, he is the one they built the gallows for. He is the one they were roaming the halls of the Capitol building looking for.
Thank you!
Thank you.