Mike Pence wags the dog: His attempt to avoid testifying is constitutional nonsense

Pence is misusing the Constitution's "speech or debate" clause to avoid Jan. 6 testimony — he ought to know better

Published February 22, 2023 6:30AM (EST)

Former Vice President Mike Pence gives remarks at the Calvin Coolidge Foundation’s conference at the Library of Congress on February 16, 2023 in Washington, DC. (Anna Moneymaker/Getty Images)
Former Vice President Mike Pence gives remarks at the Calvin Coolidge Foundation’s conference at the Library of Congress on February 16, 2023 in Washington, DC. (Anna Moneymaker/Getty Images)

Former Vice President Mike Pence's faulty reasoning for resisting Justice Department special counsel Jack Smith's subpoena has found its way to Pence's conservative defenders, perhaps with some guidance from his political advisers. Regrettably, he and they misconceive the application of the U.S. Constitution's "speech or debate" clause to a criminal investigation and have the constitutional tail wagging the dog.

The "tail" is slim legal grist misused to conceal Pence's crucial testimony from a grand jury. The dog that flailing tail is trying to shake is the grand jury's search for truth about a self-serving president's apparent attempt to overturn the election and thus the Constitution.

Pence's evidence goes straight to the heart of a crime against democracy that nearly succeeded. The truth he now seeks to hide is a truth he once embraced — that no republic can tolerate a rejected head of state's effort to overthrow it by sabotaging the constitutional process that certifies his defeat and loss of power. 

Today, in a complete reversal of principle, the only thing Mike Pence is standing up for is his own presidential aspirations. He fears offending the MAGA base by testifying against Trump. It is sadly Shakespearean when a man who courageously helped preserve and defend the Constitution allows personal ambition and fake legalism to lure him into a legacy-destroying fall.

The speech or debate clause provides that "Senators and representatives … shall not be questioned in any other Place" than Congress about "any Speech or Debate in either House." Unfortunately for Pence's claim, the Supreme Court ruled in 1972 that the clause does not "immunize a Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act." That is exactly the sort of testimony that Smith and his grand jury seek.

Imagine this scenario: Suppose that before the Trump second impeachment vote in February 2021, Sen. Susan Collins had received a phone call threatening her family's safety if she voted to convict Trump. Say she reported it to the FBI, the assailant was caught and, for whatever unlikely reason, Collins didn't want to testify against him. Although the call clearly related to a legislative matter — how she would vote — there is no conceivable way that the speech or debate clause would immunize her from testifying.

Jack Smith wants to know what Trump said to Pence when no one else was in the room. Is there any imaginable universe in which the former president, bent as he was on carrying out a scheme to overturn the people's will, did not say something corrupt as he sought Pence's help to carry out that unlawful scheme?

Suppose, for example, that Trump said, "Look, Mike, it doesn't matter who won on Nov. 8. We have alternate electors in seven states who will cast votes for us. Just say there is a dispute, and we are going to pause the congressional certification for 10 days to resolve it. I'll support you for president in 2024."

It is well within the realm of possibility that Trump added that he couldn't protect Pence from MAGA supporters if Pence resisted.

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Any such statements would provide potentially powerful evidence of a criminal state of mind. So could statements that Trump may have made in other meetings where he and Pence were alone or where Pence was present in a larger group. Pence may also have witnessed statements made to Trump in such meetings about the lack of evidence of any widespread fraud, which would be important to prove Trump's criminal knowledge in firing up the Jan. 6 mob on false pretenses.

On Thursday, retired federal Court of Appeals Judge J. Michael Luttig, the conservative judicial icon who advised Pence before Jan. 6, set out in a remarkable series of tweets why neither Smith nor any court should accept Pence's faulty arguments. The judge explained that in presiding over the joint session of Congress where the election is certified, a vice president "constitutionally serv[es] independently of the United States Senate and House of Representatives" in "ceremonial" and "ministerial" roles. The roles are unique and belong neither to the executive nor to the Congress.  

Jack Smith wants to know what Donald Trump said to Mike Pence when no one else was in the room. Is there any imaginable universe where that wasn't something corrupt?

Judge Luttig went on to say that while the legal question is unsettled, there are very "few circumstances in which there would be constitutionally legitimate need, reasons, and justification for [the speech or debate] privileges and protections" to apply to a vice president presiding over the certification. Those circumstances could include protection from questions about why Pence acted as he did and what investigations Pence conducted to play his proper role.

In other words, there might be topics on which the speech or debate clause could protect Pence from being questioned, much as it protects a senator, an aide or even a congressional administrator. But such hypothetical topics are only a distraction, and one which Pence's PR campaign appears designed to exploit in an effort to mislead the public.

Smith won't be asking Pence about how he performed his role in presiding over the joint session on Jan. 6, 2021, but about whether or how a third party — Donald Trump, for instance — solicited a lawless act by Pence. This is exactly the point on which Judge Luttig closes: Whatever "the privileges and protections enjoyed by a Vice President ...  those privileges and protections would yield to the demands of the criminal process."

The Supreme Court made that clear in another 1972 case where the court rejected Maryland Sen. Daniel C. Brewster's claim for legislative immunity from prosecution for taking an alleged bribe. Given that ruling, it cannot possibly be that the speech or debate clause protects Pence from being questioned about an apparent attempt to overthrow the government by the investigation's target. 

Pence knows that in November, the Supreme Court denied Sen. Lindsey Graham's speech-and-debate claim that he did not have to testify before a Georgia grand jury. He appeared and answered questions. While courts reiterated that he could refuse to answer and come back to a judge if the prosecutor asked questions intruding upon his legislative prerogative, he never did that, apparently because no such questions were asked.

Mike Pence could do voluntarily what Lindsey Graham was eventually ordered to do — testify, while reserving his rights to object to particular questions. For constitutional purposes, that would be the dog wagging the tail.

By Laurence H. Tribe

Laurence H. Tribe is Carl M. Loeb University Professor and professor of constitutional law emeritus at Harvard Law School.

MORE FROM Laurence H. Tribe

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

MORE FROM Dennis Aftergut

Related Topics ------------------------------------------

Commentary Constitution Donald Trump Jack Smith Jan. 6 Justice Department Mike Pence