Pence Asserts Novel Constitutional Claim to Avoid Testifying Before Grand Jury

Former Vice President Mike Pence is making a novel constitutional argument in opposing the recent grand jury subpoena for testimony from Special Counsel Jack Smith. He is claiming that, as President of the Senate, he falls under the protections of the “Speech and Debate Clause” like members of Congress. It is an unresolved question and he could ultimately prevail. However, I am not confident that the claim would bar the subpoena in its entirety.

Article I, Section 6, Clause 1 states that members of Congress “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 from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The Supreme Court has held that “to the extent that [congressional officers] serve legislative functions, the performance of which would be immune . . . if done by Congressmen, these officials enjoy the protection[s] of the Speech or Debate Clause.” Doe v. McMillan, 412 U.S. 306, 320 (1973).

The challenge could force greater clarity on the bifurcated role of a vice president as a member of both branches. As President of the Senate, Pence does vote and engage in legislative business. That certainly included the deliberations on January 6th when some members were opposing certification — a move that Pence correctly opposed.

Smith would have to argue against the Justice Department itself in seeking to compel some of this testimony. The Justice Department has maintained this broader definition in prior litigation declared in 2021 that Pence was shielded by the “speech or debate” clause in a civil lawsuit.

I believe that he is protected on his legislative functions and deliberations. However, that does not mean that he cannot be compelled to testify on matters outside of those functions. While he can try to raise other privileges, Smith can seek his testimony on the non-legislative matters.

That distinction was drawn in Fulton County v. Graham after Graham invoked the clause to decline to testify on the Georgia allegations of election interference.  The court decided that Graham could be compelled to testify so long as investigators avoided discussing his legislative responsibilities. The court held:

not “everything a Member of Congress may regularly do” is a “legislative act within the protection of the Speech or Debate Clause”—the Clause “has not been extended beyond the legislative sphere,” and the fact that “Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” Doe v. McMillan, 412 U.S. 306, 313 (1973); Gravel v. United States, 408 U.S. 606, 624–25 (1972). The Supreme Court has warned that it is not “sound or wise” to “extend the privilege beyond its intended scope, its literal language, and its history, to include all things in any way related to the legislative process.” Brewster, 408 U.S. at 516. One reason is obvious: “Given such a sweeping reading, we have no doubt that there are few activities in which a legislator engages that he would be unable somehow to ‘relate’ to the legislative process.” Id. Activities that fall outside the Clause’s scope include, for example, “cajoling” executive officials and delivering speeches outside of Congress. 

It is not clear why Smith would invite such litigation, which could take years to hash out in the courts. However, Pence has a good argument in my view for narrowing the scope of such testimony.


111 thoughts on “Pence Asserts Novel Constitutional Claim to Avoid Testifying Before Grand Jury”

  1. All Pence has to do to avoid giving any kind of testimony, is to demand to first see it in writing, that he is guaranteed that he will be treated honorably and fairly in any legal proceedings!! That is a total impossibility, because men and women are fallible, ergo, he has ZERO obligation to be put into the clutches of known criminals!
    We just saw the USSC/SCOTUS reverse Roe v. Wade last year on the grounds that it was an egregious mistake. What 99.999% of the people who read about that missed, is the fact that by reversing Roe v. Wade, we can now see that errors can and do occur in every part of the legal system, from the lowest rung, all the way to the top of it!! How can we trust the legal system to adjudicate fairly on something even as trivial as a parking ticket, when it cannot get it right when dealing with the life or death of unborn babies??
    Also, where can we find it in writing, that we have a guarantee of actually getting a fair trial every time we go into the legal system? Unless we have that guarantee, every trial is a gamble at best, but in actuality, they are all nothing but rigged up scams being used to rob us blind! WHERE is our bona fide obligation to be made yet another victim of the 100% corrupted legal system to be found?

  2. And pence should fight it all because I called him that day with national security concerns. But he wouldn’t take my 545499a call. But I called as programmed to call! Even said he’d probably want to talk to me. But he didn’t take my mk ultra call! His calls are classified…..And not by the floor. He doesn’t have to speak not because speech and debate but because national security.

    1. He did do his job.

      And to be clear, had it been sent to the House, Trump would have lost there too, as Cheney never would have voted for him.

      1. And the FBI and its subsidiary, Twitter, did their jobs also.

        The federal government kept the extremely destructive narrative of the Hunter Biden laptop out of the MSM news, including the entire Biden Crime Family saga, which would have absolutely shifted votes, according to pollsters.

  3. “… If the Times is correct about Pence’s intentions, his claim is frivolous and should be rejected swiftly. 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. …”

    1. Yeah but presidents and vice presidents et. Al. Have per the Supremes almost absolute immunitty……despite the speech and debate clause. Plus when he was in that role it was legislative. Kinda of. What bothers me is he uses speech and debate…so leaves the barn door open. No president or vice should leave the barn door open. It’s 2022…..if we haven’t even figured out the rules yet…can we really say we are the only surviving democracy? We are infants!

  4. “[B]anks and appraisers should be part of any reparations proposals because of racially discriminatory lending practices” — aka “redlining”

    Sure. Lines, as such, are racist. Get rid of them all — like the ones in roads, at stores, for college admissions and jobs.

    Instead, put those in the favored tribe at the front of those (non-existent) lines. Then there will be racial peace and harmony.

  5. Jonathan: In a comment re this column I mentioned I thought banks and appraisers should be part of any reparations proposals because of racially discriminatory lending practices. On this blog “Milhouse” objected saying my suggestion was “bulldust” and “Redlining was simply banks declining to lend money in shitty neighborhoods, where the risk of never getting their money back was unacceptably high”. He goes on with more: “If am not comfortable lending money, even of it’s because of your race, you still have no right to that money,…” (2/14 @ 4:42). Of course, if Milhouse was in the lending business he would not be able to deny a loan simply because of the borrower’s race. The following case study also illustrates that “redlining” doesn’t only go on in “shitty neighborhoods”.

    Dr. Nathan Connelly and Dr. Shani Mott, a Black couple, own a home in Homeland, Maryland, The are both professors at John Hopkins University. Their home is in a affluent predominantly White Baltimore neighborhood. In 2022 the couple applied for a loan on their home from an online lender. When the home appraisal came back it was more than $75 K below even conservative valuations of similar homes in the neighborhood. The lender denied the loan. The couple filed a lawsuit claiming racial discrimination. The couple later re-applied with another lender–this time they “whitewashed” their home (removing photos and other things that would identify them as a Black couple) and had a White colleague present the house to the new appraiser. The new appraisal came back at $750,000–more than a quarter of a million higher than the previous appraisal.

    According to the complaint the original appraiser used an appraisal method where he compared the couple’s home to properties in a nearby majority-Black area, instead of comparing similar properties in Homeland. The lawsuit alleges the appraiser’s “dramatically lower valuation reflected his beliefs that a Black family did not genuinely belong in Homeland and could not be owners of a higher valued home”. The couple is seeking damages for violations of the Fair Housing Act, the ECOA, the Civil Rights Act of 1866 and Maryland’s Fair Housing laws.

    There are many other cases like this. Home ownership is the primary contribution to multi-generational wealth building for Black and Brown families. It was denied the Bruce family in 1924 in Manhattan Beach and it still being denied to Black families around the country. So Milhouse is the one full of “bulldust” and his racism is part of the problem, not part of the solution. So if Connelly/Mott prevail in their lawsuit maybe the original lender should be required to participate in any reparations program–say 1% of future lending fees. That might deter lenders from engaging in racial discrimination in their lending practices.

    1. Maybe the second appraisal was too high. Maybe the lenders have different lending standards. It is easy to see racial victimization everywhere when someone wants to.

      1. edwardmahl: I don’t “see racial victimization” just because I want to. It exists as an objective fact. As to your claim that “maybe the second appraisal was too high” and “maybe the lenders have different lending standards” –maybes don’t count in any reasoned analysis.

        First, the article I read about the couple in Maryland doesn’t indicate whether the couple got a loan from the second lender or for how much. But if they did get their loan was based on the second appraisal that reflected comps in the neighborhood. That didn’t happen in the first appraisal. On the website “Investopedia” it says that comps “will be within 1 mile of the property and in the same school district”. This didn’t happen in the first appraisal. So what the appraiser did in the first appraisal is a no no in the the real estate lending business. And lenders generally don’t use different lending standards. The industry is pretty uniform–except when it came to the Black couple in Maryland!

        You may not see “racial victimization” in this case but I think an objective observer would conclude otherwise. Racial discrimination in housing has been around for a long and it still exists. Why else do we have the Fair Housing Act and similar state laws? I understand your POV. You apparently think racial discrimination, if it exists, is just a “personal” problem and doesn’t exist as a systemic problem. My examples show the problem goes beyond how you might feel about Black people. I could give you many other examples but it probably won’t change your mind. I think you would benefit from taking a course in CRT. But you probably won’t because you don’t want to confront your own demons.

        1. Dennis – The demon is “race baiting”, which you and almost other Democrats are dedicated to. Do you think it has helped anyone, especially the purported victims you claim to sympathise with? Before the civil rights revolution, most large Northern cities were good places to live in, with stable neighborhoods of different ethnic and racial composition. Even the black neighborhoods were good places to live in, compared to today. But, from your point of view, they were “segregated”. When your side decided to create a narrative of universial and unending racial victimization, caused by evil white people, black crime rates rose, black families fell apart, businesses left, remaining businesses were burned down or forced out of business by higher costs and fewer customers, and now most of our major Northern cities are ghettos. You people are now able to think of yourselves as more noble than demonic conservatives, but that higher self-esteem has been purchased at the cost of misery and hopelessness in our major cities. BTW, I don’t plan to keep corresponding with you on this subject, a la Anonymous, so I will just wish a good day.

    2. Thje children of Caine do not owe anything to the children of Able for the sins of their ancestors.

      I do not owe anyone anything for any alleged miconduct of my parents.
      If My father robbed a liquor store – he owes the owner for his crime.
      My responsibility is for my own actions.

      It is a violation of free will and an egregious moral crime to hold anyone accountable for the actions of others especially those they had absolutely no control over.

      The fact that anyone givres any consideration to this idiotic notion is a reflection of
      THEIR moral failure.

      There is no reason to discuss the details of how you will go about an incredibly immoral act.

      It is logically absurd that this nonsense should even be considered.

      99% or more of black slaves were enslaved and sold by Black African’s. Over 30M blacks were enslaved by blacks in Africa.

      Do the descendants of the AFricans that enslaved their own owe reparations to the blacks accross the world that were their ancestors victims ?

      About 1% of those enslaved by Africans ever made it to the colonies or to the US.
      Only a tiny protion of those alive during the era of north american slavery owned slaves.
      Further the vast majority of americans today have ancestors that arrived on these shores AFTER Slavery ended.

      Most “black americans” have slave owners among their descendants.
      Most white americans DO NOT.

      Further blacks in the US today are priviledged in comparison to their counterparts throughout the world.
      Only a tiny portion of those in africa today live as well as poor blacks in the US live today.
      If we are collectively responsible for the harm done to blacks in the past, are we not also colectively responsible for the far better outcome that the descendants of african slaves have had here – than they would have had they remained in Africa ?

      But we do not ask and answers these questions because the whole concept of trying to credit or blame current generations for the actions of their parents is IMMORAL.

  6. (OT)

    “Federal prosecutors investigating former President Donald Trump’s handling of classified documents are asking a court to force his attorney Evan Corcoran to provide additional testimony, two sources familiar with the Justice Department’s motion told CNN. To overcome the shield of attorney-client privilege, prosecutors alleged in writing to the judge that the former president used his attorney in furtherance of a crime or fraud, according to one source. …”

    1. Oh, heck yeah!

      And Real President Donald J. Trump colluded with Russians.

      Russia, Russia, Russia!!!

      Right, comrade?

      1. “Once Pence realizes he’ll never get elected president he’ll have come to grips with whether he wants to go down working on the side of sedition. “

        I don’t think Pence will ever wish to journey into the deep hell hold of the left.

    2. That means they never had anything on the classified documents or PRA scam. So they are back to obstruction. The never had any intention of defending their illegal warrants.
      I think its a stalling tactic. It will take 6 months to a yearl to make it through the appeals process.

        1. It means EXACTLY what I said.
          Acording to Garland, all the hard evidence exists to try and convict Trump of illegally handling National Defense Intelligence. All the evidence needed for refusing to turn over “marked classified” documents.

          Seeking the court to strip atty client privilege, that could take a year to work through appeals, Is proof positive Garland can ONLY attempt obstruction charges.

          AGAIN. Garlands warrants were never ever going to see the inside of a court room. All 1L students have learned what a flawed warrant looks like.

              1. What’s to debate?

                “Federal prosecutors investigating former President Donald Trump’s handling of classified documents are asking a court to force his attorney Evan Corcoran to provide additional testimony” does not imply “they never had anything on the classified documents or PRA”

                You say “Acording to Garland,” pretend he’s said something he didn’t say, and ignore the fact that Garland is not the one making the decisions in the Special Counsel’s investigation.

                1. This anonymous commenter is ATS, who wants to limit the rights of others while looking for ways to deceive the public. We can look at what ATS links to, presently under discussion by Professor Turley.

                  Turley writes, “Indeed, anti-free speech sites like Above the Law previously mocked the lawsuit and suggested that the plaintiffs were made to look like fools in court.”

                  Among other similar sites, Above the Law is a site ATS uses to demonstrate how righteous and free speech loving he is. ATS says he believes in free speech, but his rhetoric points in the opposite direction. He is an authoritarian of the worst type.

                  Turley: “It appears that, despite what Above the Law viewed as silly arguments in court, those plaintiffs and their lawyers just secured a sweeping First Amendment victory.”

                  That says it all for ATSs frequently linked to sites that are anti-free speech. It destroys most of the left’s arguments that demean correct assertions rather than debating them. No wonder ATS never stops attacking Turley for things not even under discussion

                  1. You’re quoting another Turley column. Did you mean to post your reply there rather than here? Your comment makes no sense here.

                    1. Wherever Turley wrote those words pertains to how you handle yourself based on silly and deceitful statements including links that aren’t worth anyone’s time. You sound silly.

                      I felt the need to explain what I think the above comment was correctly saying. If you think differently, let’s hear. I don’t think it matters too mcc where it was posted.

                  2. I haven’t posted any comments to that column, and that has nothing to do with the comments I’ve posted here.

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