The Senate, too, has long maintained that vice presidential involvement in its business “would fall within the legislative sphere and be protected by the speech or debate Clause.”Ĭourts have never explicitly ruled on that front, but have hinted over the years that vice presidents should enjoy some level of constitutional privilege stemming from their unique role in two branches of government. The department explicitly asserted in 2021 that Pence was shielded by the “speech or debate” clause in a civil lawsuit related to his role presiding over Congress’ Jan. That’s because unlike executive privilege, which has limits that can be overcome in criminal proceedings, “speech or debate” clause protections have remained mostly impenetrable in investigations relating to the official duties of lawmakers, their aides or other congressional officials.ĭOJ has, notably, argued in civil litigation that the “speech or debate” clause protects the vice president when working on Senate business. Most commentary since Smith subpoenaed Pence has focused on whether Trump might prevent Pence from testifying by asserting executive privilege - an unwritten constitutional protection that lets presidents maintain the confidentiality of high-level conversations (a Trump attorney told CNN Sunday that Trump intends to assert executive privilege over Pence’s testimony).īut seeking congressional immunity would further help Pence avoid a Trump collision and might prove more effective - a point legal scholars say is being overlooked. After confronting the 2020 election head-on late last year with a book and op-ed, he’s largely avoided a topic that risks courting confrontation with his former boss and possible future presidential opponent. In addition to the demand for Pence’s testimony, a parade of high-level Trump administration witnesses has marched into the sealed grand jury rooms of Washington’s federal courthouse in recent weeks.Īnd it presents a new wrinkle for Pence as he makes moves typical of a White House hopeful, including his trip to Iowa this week. Typically, prosecutors wait to subpoena top officials until right before making charging decisions. The clash arrives at a sensitive moment in Smith’s probe, which appears to be nearing its conclusion. After all, a lot of the action here took place in terms of arguments about how he should rule from the chair.” “And I’d be surprised if Pence doesn’t eventually make it. “I do think there’s a plausible argument here,” echoed Josh Chafetz, a Georgetown University constitutional law professor. Trump’s months-long crusade to pressure his vice president to derail Biden’s win - which is central to Smith’s investigation - focused entirely on Pence’s duties as Senate president, which legal scholars say lends credence to Pence’s case. 6, they lead the electoral vote count that facilitates the transfer of power from one administration to the next. “Since there is a legislative function involved in the vice president presiding over the Senate, a court very well could decide that it must address the scope of the speech or debate privilege and whether it would apply in this case.”Īlthough vice presidents aren’t technically senators, they are charged with breaking tie votes in the upper chamber. “It is admittedly a constitutionally murky area with no clear outcome,” said Mark Rozell, a George Mason University political scientist who specializes in executive privilege. That’s because the legal question of whether the vice president draws the same “speech-or-debate” protections as members of Congress remains largely unsettled, and constitutional scholars say Pence raising the issue will almost certainly force a court to weigh in. Aides expect the former vice president to address the subpoena - and his plans to respond it - during a visit to Iowa on Wednesday.īut regardless of its political consequences, the argument from Pence’s camp means Smith could be in for a legal mess. Pence is preparing to launch a presidential campaign against his onetime boss.
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