The January 6 Project
How Much Can the Speech or Debate Clause Protect Mike Pence?
Former Vice President Mike Pence’s announcement that he plans to resist a subpoena from a grand jury investigating potential crimes in connection with Jan. 6 has precipitated a great deal of debate on the nature of the vice presidency and whether Pence is, as he claims, immune from questioning under the Speech or Debate Clause of the Constitution. It may sound strange to hear a vice president invoke a constitutional protection designed to safeguard the independence of the legislative branch. But there is more to Pence’s argument than there might initially seem—or, at the very least, enough to allow Pence to substantially delay his testimony.
On my blog, Point of Order, I explained why the conventional view of the vice president as a purely executive officer is mistaken. Here, I will consider the implications of that conclusion for Pence’s claim of speech or debate immunity. (For more on this, you can listen to this Lawfare Podcast episode featuring Quinta Jurecic, Molly Reynolds, Eric Columbus, and me.)
Fortunately, Andy Wright and Ryan Goodman have written this thorough analysis on Just Security of the key legal issues the courts will need to resolve in ruling on Pence’s motion to quash the subpoena. In my view, they have identified exactly the right questions; and, as discussed below, for the most part I agree with their answers. I am less sanguine than they, however, about how long it will take for the courts to resolve this case.
I think it is helpful to start off by dividing Pence’s potential testimony into one of three categories: (a) his official capacity as president of the Senate (that is, his legislative capacity), (b) his official but nonlegislative capacity (which would include executive functions delegated by the president), and (c) his personal or political capacity. This is consistent with how the courts have approached both speech or debate and executive privilege issues (although, as I discuss on the podcast, in other ways, these two doctrines are very different).
As I wrote on Point of Order, I don’t think it is persuasive to argue that the vice presidency is a purely executive office. With respect to testimony related to Pence’s role as president of the Senate during the electoral count of Jan. 6, it makes little sense to treat him as an executive official. Wright and Goodman seem to agree and cite several additional authorities on this point. Exactly how to best characterize the vice presidency is something of a puzzle, but it is clearly not simply an executive branch office. As the Office of Legal Counsel wrote in a 1961 opinion: “Perhaps the best thing that can be said is that the Vice President belongs neither to the Executive nor to the Legislative Branch but is attached by the Constitution to the latter.”
It is arguable that the unique nature of the vice presidency warrants the recognition of a new and separate privilege distinct from those available to the legislative and executive branches. I assume, however, that the lower courts at least will operate within the confines of the recognized privileges.
It is also possible that the courts will decide that the vice president simply has no privilege at all for questions relating to his legislative capacity. The primary argument for such a conclusion would be that the Speech or Debate Clause on its face applies only to “Senators and Representatives” and the vice president is neither. Writing in National Review, Andrew McCarthy relies heavily on this textualist argument to term Pence’s position “frivolous.” In addition, because the Speech or Debate Clause is meant to protect the independence of the legislative branch from the executive and judicial branches, it may be thought anomalous to apply it to the vice presidency—which in many ways is an exception to the separation of the legislative and executive branches.
Despite these arguments, I agree with Wright and Goodman that Pence’s position is reasonable and could well be accepted by the courts. As the Supreme Court noted in Gravel v. United States, “It is true that the [Speech or Debate] Clause itself mentions only ‘Senators and Representatives,’ but prior cases have plainly not taken a literalistic approach in applying the privilege.” Furthermore, both the Senate (through Senate legal counsel) and the Department of Justice have argued in court that the vice president is protected by the Speech or Debate Clause when she is acting as president of the Senate. And while the courts have yet to rule on the issue, the U.S. Court of Appeals for the District of Columbia Circuit has appeared open to the argument, citing favorably an article noting that “[w]hen ‘the Vice President is fulfilling his duties under Article I to preside over the Senate and break ties,’ he might ‘be considered part of the legislative branch and fall within the ambit of the Speech or Debate Clause.’”
The vice president could be covered by the Speech or Debate Clause in one of two ways. First, she might be treated exactly as if she were a senator. Second, she might be treated like other congressional officers, who receive speech or debate immunity that is derivative of the Senate’s. The latter option might be thought more consistent with the constitutional purpose of protecting the Senate’s institutional independence. The question of which type of speech or debate protection the vice president receives could turn out to matter in Pence’s situation.
Even if speech or debate protection applies to Pence, I agree with Wright and Goodman that a court is unlikely to quash Pence’s subpoena in its entirety on that ground for two reasons. First, it is likely that Special Counsel Jack Smith and the grand jury want to ask Pence questions that fall outside the scope of his legislative capacity. Wright and Goodman suggest that such questions might include inquiries into “Pence and his staff’s knowledge about and communications with and within the Trump Presidential Campaign” and “public speeches given outside of Congress”—such as statements made in Pence’s recent book.
Second, it may be difficult to determine whether certain lines of inquiry relate to Pence’s legislative, or official but nonlegislative, or personal/political capacity without hearing the specific question(s) at issue in context. For example, Wright and Goodman suggest that Smith could ask Pence questions about Trump’s attempted “cajoling or exhorting [of] executive branch officials” without running into speech or debate immunity—such inquiries strike me as best evaluated on a question-by-question basis. Thus, just as Sen. Lindsey Graham (R-S.C.) was required to appear before a Georgia grand jury and assert any speech or debate objections on a question-by-question basis, I expect the courts will require Pence to do the same.
One significant issue of categorization, flagged by Wright and Goodman, relates to the role played by John Eastman, who pushed Pence to take an active role in the counting of the electoral vote and upend the process in favor of Trump. As they point out, Eastman was a private lawyer representing Donald Trump as a candidate and/or the Trump campaign. Therefore, they suggest that Eastman’s discussions with Pence could fall within the personal/political category. At this juncture, however, it seems to me more likely that Eastman, while acting as a private lawyer, was “lobbying” (for want of a better word) Pence in the latter’s legislative capacity rather than talking with him as a candidate for office. But this issue highlights why it is important to understand the precise question and context in order to make a judgment.
This brings us to the most difficult and significant legal question raised by Pence’s motion to quash the grand jury subpoena. Assuming the Speech or Debate Clause applies to him at all, does it cover conversations or other communications in which Trump, Eastman, or others try to lobby, persuade, or pressure him to take (or refrain from taking) certain actions in his capacity as president of the Senate? The issue is not whether these communications were “privileged” in the normal sense, meaning confidential. The Speech or Debate Clause has no bearing on whether Trump, Eastman, or other nonlegislative actors can be required to divulge the contents of these communications. Rather the issue is whether Pence cannot be “questioned” about the communications because they fall within the “legislative sphere.”
Some commentators have suggested that communications related to the Jan. 6 electoral vote count should be considered entirely outside the legislative sphere because the count is not a legislative proceeding in the ordinary sense and because Pence’s role in any event was purely ministerial. There are, however, plausible counterarguments. In Gravel, the Supreme Court defined the legislative sphere to include the consideration of not only legislation but also “other matters which the Constitution places within the jurisdiction of either House.” Arguably this would encompass the electoral count. Further, it is not obvious that Pence’s role in the count was purely ministerial: He could recognize members on the floor and determine whether objections were in proper form. It’s also not clear that Pence would lose speech or debate protection even if his role was indeed ministerial.
For purposes of analysis, therefore, I think we can look at these discussions as though they were ordinary communications by anyone outside the legislative branch with a legislator or legislative officer or staffer about a pending piece of legislation or some other matter within the jurisdiction of Congress. Unfortunately, that doesn’t help much—the courts have struggled to define when, if at all, such communications fall within the legislative sphere. The Supreme Court held in United States v. Heltoski that a bribe given in exchange for the promise to perform a legislative act is not covered by the clause, relying in part on the distinction between the actual performance of a legislative act and the promise to perform a “future legislative act.” Read broadly, this might suggest that all conversations about future legislative acts are outside the legislative sphere, unless they take place in a formal setting like a floor debate or a committee hearing. Such an approach would exclude from protection a great deal of what is usually understood to be the legislative process—such as drafting legislative language, informal discussions and negotiations, and so on.
On the other end of the spectrum, it might be that only the actual promise to perform a future legislative act—particularly if given in return for a corrupt inducement—is outside of the legislative sphere, while all other legislative discussions are protected, including some that might be of a corrupt nature. I’ve written about this previously in the context of negotiations over the terms of land use legislation from which a sponsoring congressman expected to receive a corrupt benefit.
Somewhere in the middle would be a rule that protects internal congressional discussions about legislation but not discussions with nonlegislative actors. Another line that has been tentatively suggested is distinguishing between negotiations before and after legislation has been introduced. The House has argued that discussions with stakeholders about pending legislation can be protected as a kind of informal fact-gathering—an argument I once characterized, perhaps unkindly, as supporting a legislator-lobbyist privilege. In short, there is no clear answer to the question whether or when informal discussions or negotiations about pending or future legislative actions are protected by the Speech or Debate Clause.
Indeed, just this week, the U.S. Court of Appeals for the D.C. Circuit held arguments in a case involving a close cousin of this very issue. The Justice Department and Rep. Scott Perry (R-Pa.) are litigating the question of whether the government can access electronic information seized from Perry’s cell phone in the course of the Jan. 6 investigation. The Jan. 6 committee has shown that Perry was closely involved in the 2020 effort to pressure the Justice Department into backing Trump’s claims of voter fraud and install a Trump-friendly attorney, Jeffrey Clark, as attorney general.
The opinion below, just unsealed, by Judge Beryl Howell, largely rejected Perry’s speech or debate arguments. Perry argued that the text messages and emails on his phone were protected by the Speech or Debate Clause if they reflected communications with anyone, inside or outside of Congress, about the Jan. 6 electoral vote count or a related subject, such as allegations of election fraud. Howell rejected “[t]his astounding view of the scope of the legislative privilege,” finding that “[t]he Clause does not protect extra-legislative communications that are only tangential to matters coming before the Congress, and most of the responsive records withheld by Rep. Perry are merely that.”
According to the court, while internal congressional communications relating to legislative matters were protected, “a Member’s informal investigative efforts or fact-finding inquiries untethered to a formally sanctioned congressional inquiry remain unprotected.” Thus, Perry’s communications with members of Congress and staff regarding matters such as “voting and/or speaking order and strategy for the [Electoral Count Act (ECA)] vote on January 6, 2021, are protected under the Clause.” However, none of Perry’s “informal ‘fact-finding’ efforts were sanctioned in any way by formal House or committee authorization or otherwise part of the regular procedural process integral to the Electoral College vote certification process, under the Constitution or the ECA.” Therefore, there was no basis for protecting Perry’s “random musings” with private individuals or state legislators regarding various matters with a tangential relationship to the subject of the Jan. 6 proceeding. Even internal congressional communications about alleged electoral fraud and legal efforts to challenge the results were not protected because they lacked a specific relationship to the Jan. 6 vote. Finally, Perry’s communications with executive branch officials were not protected, in large part because the court found they consisted of “proactive, persistent, and protracted” efforts by Perry himself to get the executive branch to take more aggressive action to combat the alleged fraud.
Howell contrasts her bright-line approach to speech or debate with the “nuanced line-drawing” by the Georgia district court in Senator Graham’s case, which she suggests would be unworkable in practice and “invite inconsistent applications of the legislative privilege.” However, it is not that easy to apply Howell’s test either. In Pence’s case, the special counsel will presumably argue that all of his communications outside of Congress should be unprotected. But Pence can plausibly argue that his case is distinguishable from Perry’s. Unlike Perry, he had a clear and formal role on Jan. 6 that was integral to the constitutional process of counting electoral votes, and the communications at issue (at least the most significant ones) were directly, not tangentially, related to the performance of that role. Moreover, he did not initiate the communications with Trump and Eastman, nor did he attempt to use them to induce executive branch action. Thus, even if the D.C. Circuit affirms and adopts the approach set forth in Howell’s opinion, it is not clear how that would play out in Pence’s case.
The most important line of inquiry for the Jan. 6 investigation likely has to do with Trump’s pressure on Pence in advance of Jan. 6—what Wright and Goodman describe as “questions about Trump trying to get Pence to promise to perform a certain act in future, especially if Trump was doing so corruptly.” Depending on where the courts draw the line on discussions about future legislative acts, this line of questioning might be clearly excluded from speech or debate protection or it might be a very close case.
Wright and Goodman argue that such questions would be permitted under the Speech or Debate Clause. My inclination is to think that the courts will ultimately allow Pence to be questioned about his communications leading up to Jan. 6, with the possible exception of those that were entirely internal to Congress, such as discussions with the parliamentarian. But I am not as confident about that as Wright and Goodman are.
In Wright and Goodman’s view, the courts may “swiftly reject Pence’s effort” to invoke the Speech or Debate Clause to avoid questioning. I am also less confident about the chances of the courts resolving this matter quickly. As noted earlier, my expectation is that the district court will deny Pence’s motion to quash and require him to raise speech or debate objections on a question-by-question basis. But Pence, like Graham, can immediately appeal this ruling to the court of appeals. And if the court of appeals affirms, he can try to get the Supreme Court to intervene.
The Court may be disinclined to intervene at this stage, as it was in Graham’s case—which would mean that Pence would have to go before the grand jury. But at that point Pence, unlike Graham, could choose to object to many of the most important questions that the prosecutor has, which would then set off another round of rulings and appeals. And given both the novel questions presented by Pence’s case and the confusion in the lower courts about the Speech or Debate Clause generally, it would not surprise me at all if the Supreme Court decided to hear the case at some point. Unless Pence’s motion to quash is denied on the ground that the Speech or Debate Clause is entirely inapplicable to his testimony and the Supreme Court declines to take the case, I think it could take quite a while to resolve this.
No matter what happens in the courts, though, Pence should not be able to avoid questioning about these matters anywhere. The Speech or Debate Clause protects him from questioning “in any other place,” meaning outside of the Senate. Any contention that he cannot be questioned in court because of the Speech or Debate Clause but cannot be questioned in the Senate for some other reason—executive privilege, for example—would be both internally inconsistent and contrary to the principle that the Constitution recognizes neither kings nor super-citizens.
Furthermore, if Pence’s speech or debate privilege is merely derivative of the Senate’s, then the Senate can choose to waive it. Or the Senate can give Pence the choice between testifying before the grand jury or testifying publicly before the Senate. One way or the other, the Senate has ways of making Pence talk if it chooses to use them.