Mike Pence is expected to fight his grand jury subpoena as part of the January 6 criminal investigation with the “speech or debate” protection – a move that could prevent the special counsel from obtaining his testimony about key conversations with Donald Trump and members of Congress.
The special counsel overseeing the Trump investigations recently issued a subpoena to Pence – a key witness with unique insight into a number of conversations with the former president and the efforts to stop the congressional certification of the 2020 presidential election.
Pence spoke to Trump one-on-one on 6 January 2021, when Trump was imploring him to unlawfully reject electoral college votes for Biden at the joint session of Congress, and was at a December 2021 meeting at the White House with Republican lawmakers who discussed objections to Biden’s win.
The two interactions are of particular investigative interest to the special counsel Jack Smith as his office examines whether Trump sought to unlawfully obstruct the certification and defrauded the United States in seeking to overturn the 2020 election results.
Pence is not expected to ignore the grand jury subpoena, in recognition that some of the special counsel’s questions might pertain to issues beyond his role as presiding officer on 6 January – a role the vice-president assumes when certifying a presidential election – such as deliberations on election night, according to people familiar with the matter.
But Pence would invoke the speech or debate clause – the constitutional provision that protects congressional officials from legal proceedings related to their work – for testimony about his preparations for the day with Trump and members of Congress that the special counsel might not otherwise be able to obtain.
The issue for the special counsel is broadly whether the presiding officer at the joint session is protected by the clause, and if so, the extent of the protection for Pence in his preparations for assuming that role.
“The crux of it is whether they’re going to treat him as a senator or representative – whether he is covered by the text,” said Steve Vladeck, a professor at the University of Texas School of Law.
“But if you get past the threshold question, the historical distinction between legislative and political functions seems to put Pence’s behaviour on the legislative side of the line,” Vladeck said, adding that the clause would “probably” be absolute for any deliberations Pence had about preparing for the joint session.
Pence’s lawyer would probably argue that not only is the joint session a legislative function – as the justice department has said in prosecutions against low-level January 6 rioters – but the presiding officer is more than just a “ceremonial” or “ministerial” role.
The logic comes in part from the fact that the presiding officer at the certification acts like the presiding officer when Congress is normally in session, or the chief justice during impeachment trials, adjudicating objections and complex parliamentary matters of procedure.
And if Pence can successfully show that he is covered by the speech or debate clause, legal experts said, supreme court precedent suggests the protection is absolute and cannot be overcome even by showing an overwhelming need for Pence’s testimony or underlying criminal activity.
“So long as Pence is entitled to the protections of the immunity, there would be no way for the government to overcome that privilege where it applies, unlike executive privilege,” said Stan Brand, the former general counsel to the House of Representatives and partner at Brand Woodward Law.
The supreme court ruled 8-1 in Eastland v United States Servicemen’s Fund (1975) that the clause was “absolute” when applied, superseding a 5-4 decision in Gravel v United States (1972) that the protection did not immunize a senator from testifying in cases involving “third-party crimes”.
The Gravel decision could be problematic for the special counsel, since the court separately found that Senator Mike Gravel’s preparation with his aide to introduce the Pentagon Papers into the congressional record was protected – indicating acts in preparation for legislative activity are off-limits.
With Pence, those two cases could be particularly instructive, since the caselaw appears to fall squarely on what the special counsel is expected to want most from him: his deliberations with Trump and members of Congress about using objections and fake electors to overturn the election results.
And in United States v Helstoski (1979), the supreme court reiterated the “absolute” nature of the speech and debate clause for members, which prevented them from being questioned in any other place than Congress.
The 6-2 majority opinion in Helstoski in particular rebutted Justice John Paul Stevens’ assertion in dissent, that the admissibility of speech or debate should depend on the purpose for which it is offered, finding instead that the clause “does not refer to the prosecutors’ purpose in offering evidence”.
A potential exception to the speech or debate clause surfaced in United States v Brewster (1972) and later in Helstoski in 1979 for “promises to take future legislative action”.
But for Senator Daniel Brewster, who had been charged for soliciting and accepting bribes in exchange for introducing bills, the supreme court ruled that while the promise to accept a bribe was not covered, the legislative acts he undertook to complete his side of the arrangement – voting, debating – remained protected.
The court found only the “illegal arrangement” was not protected – suggesting that the question of whether Trump’s conduct was illegal would not strip Pence of the privilege against testifying.