Pence defense upheld by court  

Former Vice President Mike Pence startled some legal observers when he invoked congressional immunity to resist a subpoena for testimony before a grand jury looking into efforts to overturn the 2020 presidential election. Pence was relying on his position as president of the Senate to argue he could not be compelled to testify in any other place regarding his duties as a constitutional officer of Congress. It was the first time that a vice president has relied on that shield from legal process. 

The “speech or debate” clause in Article I, section 6, of the Constitution states that senators and representatives are privileged from arrest in going to and coming from sessions of Congress and “shall not be questioned in any other place” for “any speech or debate in either house.” The only exceptions are “cases of treason, felony and breach of the peace.” 

The legal experts were perhaps less surprised by the time U.S. District Court Judge James Boasberg ruled on March 28 that Pence did have limited “speech or debate” immunity from testifying about his specific duties and actions on Jan. 6, 2021, when he presided over the electoral vote count for president and vice president before a joint session of Congress. The actual language and reasoning behind that ruling remain under seal. Pence had previously indicated a willingness to answer other questions relating to his activities and interactions with the president leading up to the Jan. 6 count, much of which he had already disclosed in his recently published book, “So Help Me God.”   

Judge Boasberg also reportedly rejected without qualification former President Trump’s effort to extend executive privilege protection on behalf of Pence – something the vice president made clear he did not wish embrace. Other Trump attempts to shield former White House and political aides from grand jury testimony have also been rebuffed by the courts. 

The peculiar positioning of vice presidents as officers of both the executive and legislative branches was practically an afterthought on the part of the 1787 constitutional convention, There was no mention of a vice president in earlier drafts. It didn’t appear until the final days of the convention as a suggestion from “the Committee on Unfinished Business” which was charged with addressing some key remaining issues left unaddressed up to that point. One such issue was the method of presidential election and succession.   

What emerged was the electoral college system in which state electors would cast two ballots, one of which could not be for someone from the same state  (to allow for other than just same-state “favorite son” votes). The vice presidency was created at this point to accommodate the runner-up (who would not necessarily be of the same party as the president). The problem was the delegates did not provide any specific duties for the vice president. As Roger Sherman of Connecticut lamented, “he would be without employment.” So, the convention relegated the vice president to the make-work job of presiding over the Senate with his only responsibility being to break tie votes.   

And, for the first century or so, the VPs sat in the chair of the Senate chamber, occasionally ruling on points of order or casting tie-breaking votes.  The first vice president, John Adams, was never invited to attend any of President George Washington’s cabinet meetings. When Adams became the next president, his vice president, Thomas Jefferson (of the opposing political party), spent most of his time in the Senate compiling his “Manual of Parliamentary Practice for the Use of the Senate of the United States,” based mostly on precedents from the British Parliament. 

While creation of the U.S. vice presidency came late in the convention, the “speech or debate” clause was included in the original draft of the document, with its roots in the early British Parliament and all subsequent American legislative bodies. It was considered a key element in protecting legislatures from disruption and destabilization by arbitrary legal assaults from the sovereign. 

It is clear from the language that the clause was intended to protect sitting members of the House and Senate from being way-laid from their official duties by arrests and trials. The doctrine was gradually extended by precedent to the elected officers of Congress and to members’ office and committee staff. The new Pence precedent is simply a logical extension of coverage of congressional officers.   

The specific responsibility of the vice president to preside over the electoral count for president and vice president is a clear constitutional duty covered by the “speech or debate” protection. In recently amending The Electoral Count Act, Congress made clear the vice president’s role is strictly ceremonial in nature, with no discretion to alter or pass judgment on any of the state results —as much as President Trump tried to persuade Pence otherwise. 

At this writing, Pence has not indicated any intention to appeal to the Supreme Court the district court’s ruling, though Judge Boasberg’s specific ruling, once unveiled, could change that. However, as Yogi Berra might have said (but did not), “Once you’ve won, stop playing.”      

Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.