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.