Pence plots unusual legal strategy in fight against subpoena

Former Vice President Mike Pence is preparing to fight a subpoena from the special counsel investigating former President Trump, setting up a complex, drawn-out legal fight as the Justice Department ramps up its probe.

Pence’s resistance to the subpoena, which is consistent with his previous reluctance to testify about the events surrounding Jan. 6, 2021, could come to define the powers and privileges that come with the vice presidency. But more immediately, it could throw a wrench into special counsel Jack Smith’s efforts to investigate Trump’s efforts to overturn the 2020 election.

Pence is planning to roll out a novel legal argument — one that hinges on his role on Jan. 6 as the presiding officer of the Senate.

His team is expected to argue that under his former position as president of the Senate, his work technically falls under the legislative branch, and he is therefore protected from the Department of Justice’s (DOJ) subpoena under the “speech and debate” clause of the Constitution, according to a source familiar with the former vice president’s plans.

The clause, which offers protection from being questioned “in any other place” beyond legislative chambers, has traditionally been used by lawmakers.

“I really think that if Vice President Pence is successful in this, it will morph our understanding of separation of powers. I think that success for him is unlikely because the Constitution is very clear about which branch the vice president belongs to,” said Juliet Sorensen, a law professor at Northwestern University.

But some see the vice president’s unique, if only periodic, role in the Senate as affording such protections.

Roy Brownell, an expert in separations of powers who has penned a paper examining the vice president’s role, said courts have generally interpreted the clause broadly, with the protections previously extended to include activities beyond direct lawmaking and in some cases even applying to congressional staff.

“Some constitutional clauses are interpreted very narrowly and some broadly. And speech or debate has been interpreted broadly,” Brownell said.

“The key issue for Pence will be trying to demonstrate that his conversations with Trump constituted legislative activity.”

The vice president may choose “to spend 99 percent of his time not with legislative branch stuff,” Brownell noted, but the role includes unique features that indicate Senate membership. He also pointed to a statute laying out federal government organization that defines “member of Congress” as including the vice president.

“If you figure the fact you can break tie votes and the fact that he gets his paycheck from the Senate, those are pretty clear indications that at least when he’s acting in his legislative capacity in the Senate, that he is part of that branch,” Brownell said.

While Pence wrote at length in his memoir about his conversations with Trump and his interactions with Trump’s legal team leading up to Jan. 6, he has resisted testifying under oath about the events around that day.

While former Pence officials from the White House testified last year to the House panel investigating the Jan. 6 riots, the former vice president said Congress had “no right” to his own testimony.

“We have a separation of powers under the Constitution of the United States,” Pence told CBS News in November. “And I believe it would establish a terrible precedent for the Congress to summon a vice president of the United States to speak about deliberations that took place at the White House.”

The House committee investigating the attack never subpoenaed Pence, however, leaving the question over the compulsory process unconfronted until now. 

Many attorneys, however, said Pence’s argument is a stretch.

They noted his role in the Senate comes with limitations not imposed on the chamber at large — including that the vice president isn’t allowed to speak or debate in the upper chamber without permission from a senator.

“I’m a skeptic,” said Neil Eggleston, who served as White House counsel under President Obama. 

“Although the Constitution gives the vice president a role in vote counting, the Constitution does not make the vice president a senator. Senators are defined in Article One. The vice president is not a senator. And I read the speech and debate clause as only applying to senators and representatives. … I don’t think the language of the Constitution permits any other reading.”

Sorensen, the Northwestern professor, noted that the language of the subpoena itself will be important in determining the strength of Pence’s legal case, particularly if it references his duties in the Senate such as casting tie-breaking votes and certifying the election, or otherwise characterizes him as a legislator.

If Pence’s efforts to resist the subpoena are rebuffed, he could choose to appeal, leading to a drawn-out legal fight that could in turn hamper Smith’s efforts to try to wrap up his investigation.

Smith would then be forced to decide how critical Pence’s testimony is to his probe into Trump’s efforts to overturn the election and what role he had in the violent riots at the Capitol on Jan. 6.

A spokesman for the special counsel declined to comment.

Attorneys agreed, however, that a speech or debate claim from Pence would only go so far and may not protect him from inquiries Smith may have into Trump’s pressure campaign on the vice president.

“This theory does not keep him from testifying. The most it does is keep him from having to answer some questions,” Eggleston said.

“If you think about what they want to ask him about, it’s all the conversations between the election and Jan. 6 where Trump was leaning on him to declare that Trump had won and not certify the election and that kind of stuff. Those are the questions they really want to ask him about. And if he thought he was a senator that day, I’m not sure it would apply to conversations with Trump before [Jan. 6]. But I don’t think any of this matters because I think this language does not apply to him.”

Sen. Lindsey Graham (R-S.C.) recently hit a roadblock in his own efforts to claim the privilege, with a judge ordering him to appear before a Georgia grand jury investigating Trump’s interference in the 2020 election.

Brownell said a successful assertion would limit prosecutors to questions outside of Pence’s role in certifying the vote.

“If it involves President Trump’s conversation about Pence’s role in the electoral count as presiding officer, then that clearly has a legislative branch component. If it’s the public campaign Trump was waging or whatever dubious things Trump was doing with respect to state election officials and all that lunacy, that would not seem to have any claim to the electoral count,” he said.

Also looming over any decision to testify about Trump’s efforts to overturn the election are Pence’s own political plans. The former vice president is weighing a 2024 presidential campaign, which would pit him against his former boss in a fight for the GOP nomination.

Any protracted legal fight could keep Pence from testifying against Trump, whose own attorneys have already indicated they will assert executive privilege claims over the former vice president’s possible testimony.

That could be appealing in itself to Trump, who has been known to pursue court challenges that have the potential to outlast the underlying legal issue.

“I think it’s something that if Trump or Pence lose, they will take it to the Supreme Court under this sort of theory that delay is good,” Eggelston said. “And so why not?”